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*358 Order, Supreme Court, New York County (Harold B. Beeler, J.), entered March 29, 2005, which granted defendant’s motion for summary judgment dismissing the complaint, affirmed, without costs.Although plaintiffs decedent alleged in her bill of particulars that she fell in the doorway at the main entrance to defendant’s premises because of a rise in the door’s saddle, her deposition testimony that she did not know what caused her to fall as she passed through the doorway and that she just assumed it was something that caught the front of her shoe, prima facie establishes defendant’s entitlement to judgment as a matter of law (see Fishman v Westminster House Owners, Inc., 24 AD3d 394 [2005]). In opposition to the motion, the only evidence adduced tending to support plaintiffs claim of a raised door saddle were the affidavits of plaintiff’s attorney and the latter’s girlfriend that several weeks after the accident they observed that the door saddle in question was about three quarters of an inch higher on the right side than the center and left side. These affidavits fail to raise a triable issue of fact as they would require a jury to speculate as to the existence of the alleged defective door saddle at the time of the accident (see Kane v Estia Greek Rest., 4 AD3d 189, 190-191 [2004]), and also because they are rendered immaterial by plaintiff’s decedent’s deposition testimony that as she approached this swinging door, an unidentified man, who was holding the door open for her, was standing to her right straddling the threshold, requiring her to move to her left to get through the doorway. Concur—Mazzarelli, J.E, Andrias, Gonzalez and Sweeny, JJ.
Document Info
Citation Numbers: 42 A.D.3d 357, 840 N.Y.S.2d 319
Judges: McGuire
Filed Date: 7/19/2007
Precedential Status: Precedential
Modified Date: 10/19/2024