BURNS v. LINDEN STREET REALTY LLC (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated May 6, 2016.  The order denied the defendant's motion for summary judgment dismissing the complaint.

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

The plaintiff allegedly was injured when she lost her grip and fell from a fire escape ladder attached to an apartment building owned by the defendant.  Thereafter, the plaintiff commenced this action against the defendant to recover damages for her personal injuries.  The plaintiff alleged both common-law negligence arising from, inter alia, the failure to properly maintain the fire escape, as well as specific statutory and building code violations.

Following the completion of discovery, the defendant moved for summary judgment dismissing the complaint, contending, inter alia, that the plaintiff could not identify the cause of her fall.  The Supreme Court denied the motion, and the defendant appeals.

The defendant established its prima facie entitlement to judgment as a matter of law through the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify the cause of her fall (see Vojvodic v. City of New York, 148 A.D.3d 1086, 1087, 51 N.Y.S.3d 534;  Reiff v. Beechwood Browns Rd. Bldg. Corp., 54 A.D.3d 1015, 864 N.Y.S.2d 175;  Denicola v. Costello, 44 A.D.3d 990, 844 N.Y.S.2d 438;  Christopher v. New York City Tr. Auth., 300 A.D.2d 336, 752 N.Y.S.2d 76).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).  The plaintiff's affidavit, in which she identified the cause of her fall as a “rusted metal shard” from the fire escape ladder, which pierced her hand, presented what appears to be a feigned issue of fact, designed to avoid the consequences of her earlier deposition testimony that her hand was “thrown off” the ladder, but she did not know why (see Capasso v. Capasso, 84 A.D.3d 997, 998, 923 N.Y.S.2d 199;  Russ v. Fried, 73 A.D.3d 1153, 1154, 901 N.Y.S.2d 703;  Blochl v. RT Long Is. Franchise, LLC, 70 A.D.3d 993, 895 N.Y.S.2d 511).  Under these circumstances, it would be speculative to conclude that any of the alleged statutory and building code violations or dangerous conditions set forth in her expert's affidavit, even if fully credited, proximately caused her accident (see Amster v. Kromer, 150 A.D.3d 804, 805, 54 N.Y.S.3d 103;  Thompson v. Commack Multiplex Cinemas, 83 A.D.3d 929, 930, 921 N.Y.S.2d 304;  Murphy v. New York City Tr. Auth., 73 A.D.3d 1143, 1144, 902 N.Y.S.2d 144;  Plowden v. Stevens Partners, LLC, 45 A.D.3d 659, 660, 846 N.Y.S.2d 238).  Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.

In light of our determination, we need not reach the defendant's remaining contentions.

RIVERA, J.P., CHAMBERS, BARROS and BRATHWAITE NELSON, JJ., concur.