Friedman v. 221 Fifth Avenue Corp.

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (S. Le-one, J.), entered July 12, 2000, which, upon the granting of the defendant’s motion pursuant to CPLR 4401, made at the close of evidence, for judgment as a matter of law dismissing the complaint for failure to establish a prima facie case, is in favor of the defendant and against them. Ordered that the judgment is affirmed, with costs. The injured plaintiff and her husband brought this action to recover damages, inter alia, for personal injuries she allegedly suffered when she tripped and fell on the sidewalk outside the defendant’s premises. According to the plaintiffs, the defendant created the allegedly defective condition. At the close of the evidence at trial, the defendant moved to dismiss the complaint for failure to establish a prima facie case. The court granted the motion and the plaintiffs appeal. We affirm. The Supreme Court properly granted the defendant’s motion to dismiss the complaint since, “upon viewing the evidence in a light most favorable to the plaintiff[s] there is no rational process by which a jury could find for the plaintiff[s] and against the moving defendant” (DiGiovanni v Rausch, 226 AD2d 420; see, McCarthy v City of New York, 250 AD2d 654, 655). Contrary to the plaintiffs’ assertion, the evidence at trial 572 failed to establish that the defendant created the allegedly dangerous condition which caused the injured plaintiff to trip and fall. The testimony of the plaintiffs’ expert witness that the defendant created the condition was improperly based on speculation (see, Carbo v City of New York, 275 AD2d 439; see also, Madtes v Town of Brookhaven, 275 AD2d 443; Masterson v City of New York, 272 AD2d 591). Krausman, J. P., Friedmann, Feuerstein and Smith, JJ., concur.