DE ROSE v. ANNA ROSE REALTY COMPANY LLC (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 28, 2021.  The order denied the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is granted.

The plaintiff allegedly was injured when she fell while descending an interior stairway in the apartment building in which she lives.  The defendants moved for summary judgment dismissing the complaint on the ground that there was no causal link between their alleged negligence and the plaintiff's fall.  In an order dated June 28, 2021, the Supreme Court denied the motion.  The defendants appeal.

“ ‘Ordinarily, a defendant moving for summary judgment ․ has the burden of establishing that it did not create the hazardous condition that allegedly caused the [plaintiff's] fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.  However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without [resort to] speculation’ ” (Grande v. Won Hee Lee, 171 A.D.3d 877, 878, 97 N.Y.S.3d 230, quoting Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 863–864, 5 N.Y.S.3d 302;  see Cheprakova v. Medicine Plaza, Inc., 211 A.D.3d 1009, 1010, 178 N.Y.S.3d 712).  “ ‘[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation’ ” (Grande v. Won Hee Lee, 171 A.D.3d at 878, 97 N.Y.S.3d 230, quoting Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747;  see Cheprakova v. Medicine Plaza, Inc., 211 A.D.3d at 1010, 178 N.Y.S.3d 712).  “ ‘Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused [the plaintiff to fall], any determination by the trier of fact as to causation would be based upon sheer speculation’ ” (Grande v. Won Hee Lee, 171 A.D.3d at 879, 97 N.Y.S.3d 230, quoting Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594).

Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony, in which she identified a defect in another step than that from which she fell as the cause of her accident and admitted that she did not know what caused her to lose her balance and fall.  Thus, any determination that the defect identified by the plaintiff was the proximate cause of her accident, rather than a misstep or loss of balance, would be based on speculation (see Cheprakova v. Medicine Plaza, Inc., 211 A.D.3d at 1010, 178 N.Y.S.3d 712;  Grande v. Won Hee Lee, 171 A.D.3d at 879, 97 N.Y.S.3d 230;  Thompson v. Commack Multiplex Cinemas, 83 A.D.3d 929, 930, 921 N.Y.S.2d 304).

In opposition, the plaintiff failed to raise a triable issue of fact (see Grande v. Won Hee Lee, 171 A.D.3d at 879, 97 N.Y.S.3d 230;  Thompson v. Commack Multiplex Cinemas, 83 A.D.3d at 930, 921 N.Y.S.2d 304;  Lissauer v. Shaarei Halacha, Inc., 37 A.D.3d 427, 829 N.Y.S.2d 229).

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint.

BARROS, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.