GASPARIK v. Bellmore Home Center, Inc., appellant. (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Bellmore Home Center, Inc., appeals from an order of the Supreme Court, Suffolk County (Carmen Victoria St. George, J.), dated October 9, 2020.  The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against it and granted that branch of the motion of the defendant Pirraglia Realty Corp. which was for summary judgment on its cross-claim against the defendant Bellmore Home Center, Inc., for contractual indemnification.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant Pirraglia Realty Corp. (hereinafter Pirraglia) owns a building and parking lot that it leased to the defendant Bellmore Home Center, Inc. (hereinafter Bellmore), which operates a hardware store on the premises.  The plaintiff testified at her deposition that, as she was walking from the parking lot to the store to shop, she caught her foot on a portion of the concrete curb between the parking lot and sidewalk in front of the store where there was a “missing” “chunk,” causing her to fall and sustain personal injuries.  The plaintiff commenced this action to recover damages for personal injuries against Pirraglia and Bellmore, and Pirraglia asserted cross-claims against Bellmore sounding in contractual indemnification, among other things.  Pirraglia then moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against it and for summary judgment on its cross-claim for contractual indemnification, and Bellmore separately moved for summary judgment dismissing the amended complaint insofar as asserted against it.  In an order dated October 9, 2020, the Supreme Court, among other things, denied Bellmore's motion and granted those branches of Pirraglia's motion which were for summary judgment dismissing the amended complaint insofar as asserted against it and for summary judgment on its contractual indemnification cross-claim.  Bellmore appeals.

“In a premises liability case, a defendant ordinarily establishes its entitlement to summary judgment by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence.  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 engaging in speculation” (Buckstine v. Schor, 213 A.D.3d 730, 731, 184 N.Y.S.3d 90 [citations and internal quotation marks omitted]).  “That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall.  Rather, it means only that a plaintiff's inability to establish the cause of his or [her] fall—whether by personal knowledge or by other admissible proof—is fatal to a cause of action based on negligence.  However, that a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury” (Santiago v. Williams, 208 A.D.3d 604, 605, 173 N.Y.S.3d 597 [citations and internal quotation marks omitted]).

Here, contrary to Bellmore's contention, it failed to establish, prima facie, that the plaintiff is unable to identify the cause of her fall without resorting to speculation (see id. at 605, 173 N.Y.S.3d 597;  Padilla v. CVS Pharm., 175 A.D.3d 584, 585–586, 107 N.Y.S.3d 428;  Patrikis v. Arniotis, 129 A.D.3d 928, 930, 12 N.Y.S.3d 174).  Accordingly, the Supreme Court properly denied Bellmore's motion for summary judgment dismissing the amended complaint insofar as asserted against it, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The Supreme Court also properly granted that branch of Pirraglia's motion which was for summary judgment on its cross-claim for contractual indemnification against Bellmore.  In opposition to Pirraglia's prima facie showing of entitlement to judgment as a matter of law on its cross-claim for contractual indemnification, Bellmore failed to raise a triable issue of fact (see Spence v. Merrick Cent., LLC, 188 A.D.3d 940, 941, 132 N.Y.S.3d 326;  Campisi v. Gambar Food Corp., 130 A.D.3d 854, 855–856, 13 N.Y.S.3d 567).

BRATHWAITE NELSON, J.P., MALTESE, WOOTEN and WAN, JJ., concur.