Robert Campbell et al., Appellants, v. City of New York, Respondent, et al., Defendants

Robert Campbell et al., Appellants, v City of New York, Respondent, et al., Defendants. [686 NYS2d 331] [MAJORITY] —In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (R. Goldberg, J.), dated April 14, 1998, as denied their motion for leave to file their note of issue, and granted the cross motion of the City of New York to dismiss the complaint insofar as it is asserted against it. Ordered that the order is affirmed insofar as appealed from, with costs. The defendant City of New York established its entitlement to judgment as a matter of law on the ground, inter alia, that the alleged defective condition of the sidewalk did not constitute a proximate cause of the accident (see, Schmidt v City of New York, 33 AD2d 1041, affd 28 NY2d 944). The injured plaintiffs testimony at his examination before trial that the alleged cracks in the sidewalk “could have helped” create the dangerous condition, was pure speculation. Accordingly, summary judgment was properly granted to the City. O’Brien, J. P., Joy, Krausman and Goldstein, JJ., concur.