The defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the injury without engaging in speculation. Here, the defendant met his prima facie burden through the submission of the transcript of the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify either where on the brick path his injury occurred or what defect in the brick path, if any, caused his ankle to roll. In opposition, the plaintiffs failed to raise a triable issue of fact. Plaintiffs' expert report failed to establish a causal link between the alleged injury and unspecified defects in the brick path that the expert observed more than four years after the injured plaintiff's accident.
Mercurio v. Dayton, NY Slip Op 04298 (2d Dep't July 6, 2022)
