Mendoza v. 685 Sterling Realty Corp.

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated September 5, 2000, which granted the motion of the defendant Repco Fuel Oil Co., Inc., for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

The plaintiff allegedly tripped and fell over a raised fuel oil cap in a sidewalk. The respondent, Repco Fuel Oil Co., Inc., conceded that it made fuel deliveries to the subject premises. However, the respondent established a prima facie case of entitlement to judgment as a matter of law by demonstrating that it did not create the allegedly dangerous condition. The plaintiffs circumstantial evidence that the respondent caused the fuel cap to be raised was based on mere speculation, and thus, she failed to establish the existence of a triable issue of fact (see, Frankie v Glen Cove Hous. Auth., 276 AD2d 668). Bracken, P. J., Friedmann, Florio, H. Miller and Townes, JJ., concur.