HOWE v. FLATBUSH PRESBYTERIAN CHURCH (2008)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated March 28, 2007, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The plaintiff was injured when he fell down a stairway on premises owned by the defendant.   The defendant failed to make a prima facie showing of its entitlement to summary judgment.  “A plaintiff's inability to identify the cause of his or her fall is fatal to his or her cause of action” (Jackson v. Fenton, 38 A.D.3d 495, 831 N.Y.S.2d 260).   However, contrary to the defendant's contention, the plaintiff testified at his deposition that he was caused to lose his balance on the stairway when one of the steps, which was loose, moved forward as he placed his foot upon it.   The plaintiff further testified that the handrail was unstable and that he was forced to let go of it to avoid injuring his hand.   Thus, the defendant failed to make a prima facie showing that the staircase was not in a hazardous condition and that the plaintiff's fall was not proximately caused by its negligence in failing to remedy these defects (see Jackson v. Fenton, 38 A.D.3d at 496, 831 N.Y.S.2d 260;  Boyd v. Rome Realty Leasing Ltd. Partnership, 21 A.D.3d 920, 921, 801 N.Y.S.2d 340;  Swerdlow v. WSK Properties Corp., 5 A.D.3d 587, 587-588, 772 N.Y.S.2d 864).

The defendant also failed to make a prima facie showing that it did not have actual or constructive notice of the alleged defective condition (see Indence v. 225 Union Ave. Corp., 38 A.D.3d 494, 495, 831 N.Y.S.2d 489;  Jackson v. Fenton, 38 A.D.3d at 496, 831 N.Y.S.2d 260;  see generally Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774).

The defendant's remaining contentions are without merit.