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MILDRED KLAR, etc., respondent, v. A.J. PEGNO CONSTRUCTION CORP., appellant.

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.

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KLAR v. A.J. PEGNO CONSTRUCTION CORP
(Dec 2, 1999)