Don v. MGM Transport Corp.

In an action to recover damages for personal injuries and to recover uninsured motorist benefits, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Lally, J.), entered December 17, 1999, which, inter alia, granted the motion of the defendant GEICO General Insurance Company for summary judgment dismissing the complaint insofar as asserted against it, and dismissed the complaint insofar as asserted against that defendant.

Ordered that the order and judgment is affirmed, with costs.

*447Pursuant 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. Altman, J. P., Goldstein, H. Miller and Smith, JJ., concur.