HERNANDEZ v. 38 09 JUNCTION REALTY LLC (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), entered June 23, 2022.  The order, insofar as appealed from, granted that branch of the motion of the defendant 38–09 Junction Realty, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it.

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

The plaintiff allegedly was injured in August 2016 when she tripped and fell on a raised tile or brick while walking toward the subway station located at the corner of Junction Boulevard and Roosevelt Avenue in Queens.  Thereafter, the plaintiff commenced this action to recover damages for personal injuries against, among others, the defendants 38–09 Junction Realty, LLC (hereinafter 38–09 Junction), City of New York, and New York City Transit Authority (see Hernandez v. 38–09 Junction Realty, LLC, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2025 WL 979772 [Appellate Division Docket No. 2022–05534;  decided herewith]).  Following the completion of discovery, 38–09 Junction moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, contending, among other things, that the plaintiff was unable to identify the cause of her fall without engaging in speculation.  In an order entered June 23, 2022, the Supreme Court, inter alia, granted that branch of 38–09 Junction's motion.  The plaintiff appeals.  We affirm.

“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” (Barretta v. Michaels Stores, Inc., 230 A.D.3d 1208, 1209, 216 N.Y.S.3d 721 [internal quotation marks omitted];  see Alvarez v. Staten Is. R.T. Operating Auth., 225 A.D.3d 830, 830, 208 N.Y.S.3d 263).  However, a defendant can demonstrate its prima facie entitlement to summary judgment by showing “that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” (Barretta v. Michaels Stores, Inc., 230 A.D.3d at 1209, 216 N.Y.S.3d 721 [internal quotation marks omitted];  see Buckstine v. Schor, 213 A.D.3d 730, 731, 184 N.Y.S.3d 90).  “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” (Osmolska v. Giuseppa Morreale Family Trust, 230 A.D.3d 594, 595, 216 N.Y.S.3d 668 [alteration and internal quotation marks omitted];  see De Rose v. Anna & Rose Realty Co., LLC, 219 A.D.3d 700, 701, 194 N.Y.S.3d 555).

Here, 38–09 Junction established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting, among other things, transcripts of the plaintiff's deposition testimony and related exhibits which demonstrated that she could not identify the cause of her fall without engaging in speculation (Barretta v. Michaels Stores, Inc., 230 A.D.3d at 1209, 216 N.Y.S.3d 721).  The plaintiff expressly testified that she did not see a raised brick or tile before or after she fell (see Mallen v. Dekalb Corp., 181 A.D.3d 669, 670, 121 N.Y.S.3d 331;  Razza v. LP Petroleum Corp., 153 A.D.3d 740, 742, 60 N.Y.S.3d 325).  In opposition, the plaintiff failed to raise a triable issue of fact (see Gaither–Angus v. Adelphi Univ., 180 A.D.3d 875, 876, 116 N.Y.S.3d 581;  Fortune v. Raritan Bldg. Servs. Corp., 175 A.D.3d 469, 470, 103 N.Y.S.3d 843).

Accordingly, the Supreme Court properly granted that branch of 38–09 Junction's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

CONNOLLY, J.P., CHAMBERS, VOUTSINAS and MCCORMACK, JJ., concur.