DECISION ORDER
ORDERED that the order and judgment is affirmed, with costs.
Pursuant to a provision in the insurance policy issued by the respondent GEICO General Insurance Company (hereinafter GEICO) to the plaintiff, the plaintiff could recover uninsured motorist benefits for bodily injury resulting from "the actions of an unidentified motorist". The plaintiff claims that the accident occurred when he swerved to avoid a tree in the roadway, and struck another vehicle. There is no evidence as to how the tree came to be lying in the roadway.
GEICO made out a prima facie case for summary judgment dismissing the complaint insofar as asserted against it. We agree with the Supreme Court that nothing other than surmise and conjecture supports the plaintiff's theory that the actions of an unidentified motorist were a proximate cause of the accident. Accordingly, the Supreme Court properly granted GEICO's motion.