MANAVAZIAN v. Domenica Pietromonaco, respondent. (2020)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), entered April 16, 2019.  The order granted the motion of the defendant Domenica Pietromonaco for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained on October 9, 2016, when she slipped and fell in the basement kitchen of her residence.  The defendant Domenica Pietromonaco (hereinafter the defendant), who owned the premises, moved for summary judgment dismissing the complaint, contending that the plaintiff did not know what had caused her to fall.  The Supreme Court granted the defendant's motion.  The plaintiff appeals.

A defendant in a slip-and-fall case 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 without engaging in speculation (see Rodriguez v. New York City Hous. Auth., 169 A.D.3d 947, 948–949, 94 N.Y.S.3d 318;  Defino v. Interlaken Owners, Inc., 125 A.D.3d 717, 4 N.Y.S.3d 89).  “Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident.  However, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” (Amico v. Kasneci, 134 A.D.3d 969, 970, 20 N.Y.S.3d 908;  see Louman v. Town of Greenburgh, 60 A.D.3d 915, 916, 876 N.Y.S.2d 112).

Here, the defendant established her prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, inter alia, the deposition testimony of the plaintiff, who testified that she did not know what had caused her to fall (see Rodriguez v. New York City Hous. Auth., 169 A.D.3d at 948–949, 94 N.Y.S.3d 318;  Amico v. Kasneci, 134 A.D.3d at 970, 20 N.Y.S.3d 908;  Defino v. Interlaken Owners, Inc., 125 A.D.3d at 717–718, 4 N.Y.S.3d 89;  Deputron v. A & J Tours Inc., 106 A.D.3d 944, 945, 964 N.Y.S.2d 670).  In opposition, the plaintiff failed to raise a triable issue of fact.  Contrary to the plaintiff's contention, the Supreme Court properly declined to consider the affidavit of her husband in determining the motion, since he was not identified as a relevant witness during discovery (see Muniz v. New York City Hous. Auth., 38 A.D.3d 628, 831 N.Y.S.2d 513;  see also Lara v. City of New York, 135 A.D.3d 712, 713, 24 N.Y.S.3d 126;  Rizos v. Galini Seafood Rest., 89 A.D.3d 1004, 1005, 933 N.Y.S.2d 703).

Accordingly, we agree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the complaint.

DILLON, J.P., COHEN, MILLER and BARROS, JJ., concur.