Upon the foregoing papers it is ordered that the motion by defendant Philip M. Dietrich, pursuant to CPLR § 3212, for summary judgment in his favor and dismissing the complaint, as against him, is granted for the following reasons:

It is axiomatic that the Summary Judgment remedy is drastic and harsh and should be used sparingly. The motion is granted only when a party establishes, on papers alone, that there are no material issues and the facts presented require judgment in its favor. It must also be clear that the other side's papers do not suggest any issue exists. Moreover, on this motion, the court's duty is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist. See, Barr v. County of Albany, 50 NY2d 247 (1980); Miceli v. Purex, 84 AD2d 562 (2d Dept. 1981); Bronson v. March, 127 AD2d 810 (2d Dept. 1987.). Finally, as stated by the court in Daliendo v. Johnson, 147 AD2d 312,317 (2d Dept. 1989), "Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied."

The action herein involves allegations that, on October 6, 2003, while plaintiff was roller blading at his fastest rate, he felt a considerable amount of water dripping on him and this apparently made him slip and fall and suffer physical injuries. Thereafter he brought the [*2]instant action to recover damages for those injuries.

Defendant Philip M Dietrich has now moved for summary judgment on the grounds, that plaintiff has failed to establish that defendant was the cause of his fall. Defendant has submitted plaintiff's sworn deposition testimony that indicates that he did not know either who was responsible for putting water on him, or where the water came from. He also acknowledged that he was racing at the time of the accident and he just slipped.

Plaintiff opposes this motion and claims that the motion is premature since discovery has not yet been completed. He points out that defendant's evidence indicates that, prior to the accident, plaintiff had a verbal exchange with some people who were on the bus that plaintiff was on. He also asserts that friends of his told him that they saw defendant spraying water on plaintiff.

Defendant has submitted sufficient evidence to demonstrate plaintiff does not know how the water got on him or how he slipped. Such a showing was sufficient to satisfy defendant's burden of coming forward with evidentiary proof in admissible form to establish that plaintiff's cause of action lacks merit. See, Zuckerman v City of New York, 49 NY2d 557 (1980.) Plaintiff has not submitted sufficient evidence to raise an issue of fact regarding this assertion. Initially, his lawyer's affirmation is of no probative value in opposing a motion for summary judgment. Marinelli v. Shifrin, 260 AD2d 227,( 1st Dept. 1999 ). Moreover, the only evidence submitted by plaintiff in opposition to this motion that possibly links defendant to the accident is hearsay. While hearsay evidence may be utilized in opposition to a motion for summary judgment, it is insufficient to defeat the motion when no other evidence is submitted in opposition. Narvaez v NYRAC, 290 AD2d 400 (1st Dept 2002.) At best, plaintiff's evidence shows mere speculation that defendant was near plaintiff at the time of the accident, which does not raise an issue of fact. Mere speculation regarding causation is inadequate to sustain the cause of action. Narvaez v NYRAC, 290 AD2d 400 (1st Dept 2002.) Accordingly, summary judgment is appropriate.

Furthermore, this Court rejects plaintiff's contention that this summary judgment motion is premature because discovery has not occurred. A party who claims ignorance of critical facts to defeat a motion for summary judgment (see, CPLR 3212 [f]) must first demonstrate that the ignorance is unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue. Gillinder v. Hemmes, 298 AD2d 493 (2d Dept 2002.) Here the plaintiff has failed to offer any evidence as to why he has not been able to obtain affidavits from his purported witnesses. Nor has he shown that defendant has any knowledge or control of these witnesses. Finally, plaintiff's mere hope that he will depose defendant and obtain evidence that defendant caused the accident is simply speculation. As such, plaintiff did not establish the need for discovery to ascertain "facts essential to justify opposition" within defendant's knowledge, which he would need to oppose the summary judgment motion, so as to authorize the court to deny any relief or grant a continuance pending disclosure. See, Cruz v Otis Elevator Company (2d Dept 1997.)

Dated: May 4, 2007..................................................

ORIN R. KITZES, J.S.C. [*3]