MALLEN v. DEKALB CORP (2020)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bernadette Bayne, J.), dated April 20, 2016.  The order, insofar as appealed from, granted that branch of the motion of the defendant Dekalb Corp. 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 commenced this action to recover damages for personal injuries after she allegedly tripped and fell over a defect in a sidewalk abutting premises owned by the defendant Dekalb Corp. (hereinafter Dekalb).  Dekalb moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it.  The Supreme Court granted that branch of Dekalb's motion on the ground that the plaintiff could not identify the cause or location of her fall.  The plaintiff appeals.

“In a trip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall” (Moiseyeva v. New York City Hous. Auth., 175 A.D.3d 1527, 1528, 109 N.Y.S.3d 370; see Bilska v. Truszkowski, 171 A.D.3d 685, 686, 98 N.Y.S.3d 110; Singh v. City of New York, 136 A.D.3d 641, 642–643, 24 N.Y.S.3d 407; Buglione v. Spagnoletti, 123 A.D.3d 867, 867, 999 N.Y.S.2d 453; Altinel v. John's Farms, 113 A.D.3d 709, 709–710, 979 N.Y.S.2d 360).  “Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation” (Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594).

Here, Dekalb established its prima facie entitlement to judgment as a matter of law by submitting the plaintiff's deposition testimony, which demonstrated that she was unable to identify the cause of her fall without resorting to speculation (see Singh v. City of New York, 136 A.D.3d at 642, 24 N.Y.S.3d 407; Ash v. City of New York, 109 A.D.3d at 855–856, 972 N.Y.S.2d 594; Douse v. City of New York, 70 A.D.3d 764, 764–765, 895 N.Y.S.2d 457).  Although the plaintiff testified at her deposition that three weeks after the accident, she observed a “broken cracked sidewalk” in the area where she allegedly fell, she acknowledged at her deposition that on the day of the accident, she did not look to see what caused her to fall (see Deputron v. A & J Tours, Inc., 106 A.D.3d 944, 945, 964 N.Y.S.2d 670; Dennis v. Lakhani, 102 A.D.3d 651, 652, 958 N.Y.S.2d 170; Douse v. City of New York, 70 A.D.3d at 765, 895 N.Y.S.2d 457; Louman v. Town of Greenburgh, 60 A.D.3d 915, 916, 876 N.Y.S.2d 112; Israel v. Fairharbor Owners, Inc., 20 A.D.3d 392, 392, 798 N.Y.S.2d 139).

In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff's affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony (see Bryant v. Loft Bookstore Café, LLC, 138 A.D.3d 664, 665–666, 27 N.Y.S.3d 876; Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747; Bolde v. Borgata Hotel Casino & Spa, 70 A.D.3d 617, 618, 892 N.Y.S.2d 892).  The affidavit submitted by the plaintiff's expert was also insufficient to raise a triable issue of fact.  Since the plaintiff testified at her deposition that she did not see what caused her to fall on the day of the accident, it would be speculative to assume that the alleged defect her expert identified in the sidewalk approximately four years after the accident caused her fall (see Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d at 827, 995 N.Y.S.2d 747; Costantino v. Webel, 57 A.D.3d 472, 472, 869 N.Y.S.2d 179).  Contrary to the plaintiff's contentions, the complaint and the bills of particulars, which were verified by the plaintiff's attorney—who lacked personal knowledge of the facts stated therein—were insufficient to raise a triable issue of fact (see Irizarry v. Heller, 95 A.D.3d 951, 953, 943 N.Y.S.2d 606; Matter of Allen, 210 A.D.2d 856, 857, 621 N.Y.S.2d 138).  Accordingly, we agree with the Supreme Court's determination to grant that branch of Dekalb's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

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

DILLON, J.P., ROMAN, LASALLE and WOOTEN, JJ., concur.