DONER v. CAMP (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action to recover damages for injuries that she sustained when she fell on wooden steps located on premises owned by defendant.  Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint.  Contrary to his contention, defendant failed to meet his prima facie burden.  “In a slip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” (Rinallo v. St. Casimir Parish, 138 A.D.3d 1440, 1441, 31 N.Y.S.3d 711 [4th Dept. 2016] [internal quotation marks omitted];  see Lane v. Texas Roadhouse Holdings, LLC, 96 A.D.3d 1364, 1364, 946 N.Y.S.2d 339 [4th Dept. 2012] ).  Here, defendant submitted the deposition testimony of plaintiff, who testified that the worn condition of the steps caused her to fall.  Plaintiff further testified that, when she stepped onto the bottom step with her right foot, her ankle rolled inward, causing her to fall over the left side of the steps.  A photograph in the record showed that a significant portion of the wood on the right hand side of the bottom step was worn away.  That evidence “ ‘render[ed] any other potential cause of [her] fall sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence’ ” (Rinallo, 138 A.D.3d at 1441, 31 N.Y.S.3d 711).  Inasmuch as defendant failed to meet his prima facie burden, we need not consider whether plaintiff raised an issue of fact in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).