Opinion
Argued October 7, 1999
December 2, 1999
In an action to recover damages for personal injuries and wrongful death, the defendant appeals from an order of the Supreme Court, Queens County (Thomas, J.), dated September 29, 1998, which denied its motion for summary judgment dismissing the complaint.
Fiedelman McGaw, Jericho, N.Y. (Susan E. Lysaght of counsel), for appellant.
Wolf Hoffman, Brooklyn, N.Y. (Thomas Torto and Lawrence B. Goodman of counsel), for respondent.
GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The Supreme Court erred in finding that the defendant failed to establish its entitlement to judgment as a matter of law. The defendant submitted evidence, in the form of its daily work reports and the deposition testimony of its project engineer, which demonstrated that it was not performing any work in the area where the plaintiff's decedent tripped and fell (see, Soto v. City of New York, 244 A.D.2d 544 ; Abbenante v. Tyree Co., 228 A.D.2d 529 ;Hovi v. City of New York, 226 A.D.2d 430 ). The plaintiff's opposition to the defendant's motion did not create a triable issue of fact as to whether the defendant was working in the area where the plaintiff's decedent fell. The plaintiff's opposition was based solely upon speculation that the defendant's construction activity was the cause of her decedent's fall (see, Lee v. Rite Aid of New York, 261 A.D.2d 368 [2d Dept., May 3, 1999]; Gianchetta v. E. B. Marine, Inc., 258 A.D.2d 618 [2d Dept., Feb. 22, 1999]).
KRAUSMAN, J.P., McGINITY, FEUERSTEIN, and SMITH, JJ., concur.