RIVERA v. THOMAS (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Orange County (Mary Anne Scattaretico–Naber, J.), dated June 11, 2025.  The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, who was a tenant in one of two units within a two-family residential property owned by the defendant, allegedly fell on the exterior driveway of the property.  The plaintiff allegedly sustained personal injuries as a result of the incident and commenced this action against the defendant.  Thereafter, the defendant moved for summary judgment dismissing the complaint, contending that the plaintiff did not know what caused her to fall and that he did not create or have notice of any hazardous condition.  In an order dated June 11, 2025, the Supreme Court denied the defendant's motion.  The defendant appeals.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence (see Randazzo v. Long Is. Jewish Med. Ctr., 239 A.D.3d 1010, 1010, 234 N.Y.S.3d 622;  Abramowitz v. Stephen P. Esposito, M.D., P.C., 234 A.D.3d 652, 653, 224 N.Y.S.3d 547).  A defendant moving for summary judgment can also make a 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 (see Stroman v. Douglaston Delicatessen, 245 A.D.3d 864, 864–865, 246 N.Y.S.3d 496;  Devoe v. Nostrand II Meat Corp., 216 A.D.3d 738, 739, 188 N.Y.S.3d 630).

Here, viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, the defendant failed to establish, prima facie, that the plaintiff could not identify what caused her to fall (see Stroman v. Douglaston Delicatessen, 245 A.D.3d at 865, 246 N.Y.S.3d 496;  Diaz v. SCG 502, LLC, 215 A.D.3d 639, 640, 187 N.Y.S.3d 273).  The defendant also failed to establish, prima facie, that he maintained the property in a reasonably safe condition and that he did not have notice of the condition that allegedly caused the plaintiff to fall (see Parietti v. Wal–Mart Stores, Inc., 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853;  Cabanas v. Qiu Yu Zou, 215 A.D.3d 726, 728, 187 N.Y.S.3d 708).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

The defendant's contention that the condition of the driveway was trivial and thus not actionable is improperly raised for the first time on appeal and not properly before this Court (see Paraskevopoulos v. Voun Corp., 216 A.D.3d 983, 985, 189 N.Y.S.3d 277;  Leem v. 152–24 N., LLC, 201 A.D.3d 918, 920, 157 N.Y.S.3d 749).

CONNOLLY, J.P., CHRISTOPHER, WARHIT and GOLIA, JJ., concur.