Domenica Drago, et al., appellants, v. CPA (2010)

Supreme Court, Appellate Division, Second Department, New York.

Domenica Drago, et al., appellants, v. William Paul DeLuccio, CPA, et al., respondents.

2009-11023 (Index No. 100217 /08)

Decided: December 21, 2010

REINALDO E. RIVERA, J.P. THOMAS A. DICKERSON PLUMMER E. LOTT SANDRA L. SGROI, JJ.

Andrew Pappas (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac], of counsel), for appellants. Robin, Harris, King, Fodera & Richman (Mauro Goldberg & Lilling, LLP, Great Neck, N.Y. [Matthew W. Naparty and Jennifer B. Ettenger], of counsel), for respondents. To impose liability upon the defendants for the plaintiff ‘s fall, there must be evidence tending to show the existence of a dangerous or defective condition and that the defendants either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time (see Christopher v New York City Tr. Auth., 300 A.D.2d 336).   The defendants sustained their initial burden of establishing their prima facie entitlement to judgment as a matter of law by submitting the plaintiff's deposition, which revealed that she did not know what caused her to trip as she exited the defendants' office (see Penn v Fleet Bank, 12 AD3d 584).   The plaintiff admitted at her deposition that she did not notice the mat at any time prior to the fall on the day of the occurrence, and that it was only after she fell that she observed the mat in a “rolled up” condition.   It is just as likely under these facts that the “rolled up” condition of the mat was caused when the plaintiff tripped and was not a pre-existing condition.   In the absence of proof that the mat was rolled up before the plaintiff's accident, a jury would be required to speculate as to the cause of her trip and fall (see Duncan v Toles, 21 AD3d 984;  Mullaney v Koenig, 21 AD3d 939;  Penn v Fleet Bank, 12 AD3d at 584).   In opposition, the plaintiff failed to raise a triable issue of fact.   Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.