CARYN KNOP PLAINTIFF APPELLANT v. DAVID CULLEN DEFENDANT RESPONDENT

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Supreme Court, Appellate Division, Fourth Department, New York.

CARYN A. KNOP, PLAINTIFF–APPELLANT, v. DAVID T. CULLEN, DEFENDANT–RESPONDENT.

CA 17–02016

Decided: April 27, 2018

PRESENT:  CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ. LAW OFFICE OF MARK H. CANTOR LLC, BUFFALO (DAVID J. WOLFF, JR., OF COUNSEL), FOR PLAINTIFF–APPELLANT. LAW OFFICE OF JOHN TROP, ROCHESTER (TIFFANY L. D'ANGELO OF COUNSEL), FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action to recover damages for injuries that she allegedly sustained when she fell down the staircase to the basement of the house where she resided, which was owned by defendant.  Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint.  Defendant met his initial burden by establishing as a matter of law that plaintiff was unable to specify what caused her to fall “ ‘without engaging in speculation’ “ (Smart v. Zambito, 85 AD3d 1721, 1721 [4th Dept 2011];  see Vojvodic v. City of New York, 148 AD3d 1086, 1088 [2d Dept 2017] ).  At her deposition, plaintiff testified only that her foot slid and that she lost her footing.  The unrefuted evidence in the record also establishes that plaintiff had ascended and descended the staircase without falling on a daily basis for the preceding eight years.  We conclude that “it is just as likely that the accident could have been caused by some other factor [unrelated to any alleged negligence on defendant's part], such as a misstep or loss of balance[, and thus] any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation” (Smart, 85 AD3d at 1721 [internal quotation marks omitted];  cf.  Lane v Texas Roadhouse Holdings, LLC, 96 AD3d 1364, 1365 [4th Dept 2012] ).  Plaintiff failed to raise an issue of fact in opposition to the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ).  We note in particular that the affidavit of plaintiff's engineering expert, who opined that the staircase was not in compliance with the applicable building code, failed to raise an issue of fact with respect to the cause of plaintiff's fall (see Murphy v. Conner, 84 N.Y.2d 969, 972 [1994] ).

Mark W. Bennett

Clerk of the Court