COGNETTA v. HYLAN PLAZA 1339 LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), dated November 2, 2023.  The order granted the defendants' motion for summary judgment dismissing the amended complaint.

ORDERED that the order is affirmed, with costs.

In 2021, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained after she tripped and fell as a result of an alleged crack in a sidewalk.  After the completion of discovery, the defendants moved for summary judgment dismissing the amended complaint, inter alia, on the ground that the plaintiff was unable to identify what caused her to fall without resorting to speculation.  In an order dated November 2, 2023, the Supreme Court granted the motion.  The plaintiff appeals.

“ ‘Ordinarily, a defendant moving for summary judgment in a trip-and-fall [or slip-and-fall] case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.  However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation’ ” (Tam v. Blake Realty, LLC, 242 A.D.3d 1037, 1038, 240 N.Y.S.3d 818, quoting Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 863–864, 5 N.Y.S.3d 302).  “[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation” (Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747;  see Tam v. Blake Realty, LLC, 242 A.D.3d at 1038, 240 N.Y.S.3d 818).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint by submitting a transcript of the plaintiff's deposition testimony, which demonstrated that she was unable to identify the cause of her fall without resorting to speculation (see Diaz v. City of New York, 190 A.D.3d 940, 941, 136 N.Y.S.3d 908;  Mallen v. Dekalb Corp., 181 A.D.3d 669, 670, 121 N.Y.S.3d 331).  In opposition, the plaintiff failed to raise a triable issue of fact as to the cause of the accident (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).  “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” (Diaz v. City of New York, 190 A.D.3d at 941, 136 N.Y.S.3d 908 [internal quotation marks omitted];  see Osmolska v. Giuseppa Morreale Family Trust, 230 A.D.3d 594, 595, 216 N.Y.S.3d 668).

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the amended complaint.

The parties' remaining contentions need not be reached in light of our determination.

BARROS, J.P., GENOVESI, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.