OETTINGER v. LLC

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

Steven OETTINGER, appellant, v. AMERADA HESS CORPORATION, et al., defendants third-party plaintiffs-respondents; Manhattan Beer Distributors, LLC, third-party defendant-respondent.

Decided: February 28, 2005

HOWARD MILLER, J.P., DANIEL F. LUCIANO, REINALDO E. RIVERA, and ROBERT A. LIFSON, JJ. Gaines, Gruner, Ponzini & Novick, LLP, White Plains, N.Y. (Steven H. Gaines and Eric Press of counsel), for appellant. Henderson & Brennan, White Plains, N.Y. (John T. Brennan of counsel), for defendants third-party plaintiffs-respondents. Susan B. Owens, White Plains, N.Y. (Debora J. Dillon of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Putnam County (Sweeny, J.), dated August 27, 2003, which granted the motion of the defendant third-party plaintiffs and the separate motion of the third-party defendant for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

 The plaintiff allegedly was injured while stepping over a case of beer in the aisle of a store owned and maintained by the defendants third-party plaintiffs, Amerada Hess Corporation, Hess Mart, Inc., d/b/a Hess Mart, and Hess Realty Corporation (hereinafter referred to collectively as Hess).   The case of beer allegedly had been delivered by the third-party defendant, Manhattan Beer Distributors, LLC (hereinafter Manhattan Beer).   Hess and Manhattan Beer separately moved for summary judgment and met their burden of establishing prima facie entitlement to that relief by demonstrating that the plaintiff was unable to identify the cause of the accident (see Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 735 N.Y.S.2d 585;  Robinson v. Lupo, 261 A.D.2d 525, 526, 690 N.Y.S.2d 640).   The plaintiff testified at his deposition that, after stepping over the beer, he was “not certain about much.”   The plaintiff testified that he did not slip or trip, and he was not sure if it was a case of beer or a case of some other product.   A store employee stated in an affidavit that he went to the area immediately after the accident and did not see anything on the floor.

 Although proximate cause can be established in “the absence of direct evidence of causation [and] ․ may be inferred from the facts and circumstances underlying the injury” (Hartman v. Mountain Val. Brew Pub, 301 A.D.2d 570, 754 N.Y.S.2d 31), “[m]ere speculation as to the cause of a fall, where there can be many causes, is fatal to a cause of action” (Garvin v. Rosenberg, 204 A.D.2d 388, 614 N.Y.S.2d 190).   In opposition to the motions, the plaintiff failed to present evidence sufficient to raise a triable issue of fact as to the cause of the accident.  “Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation” (see Teplitskaya v. 3096 Owners Corp., supra at 478, 735 N.Y.S.2d 585;  see Robinson v. Lupo, supra at 526, 690 N.Y.S.2d 640;  Babino v. City of New York, 234 A.D.2d 241, 242, 650 N.Y.S.2d 778).   Accordingly, the Supreme Court properly granted the motions for summary judgment (see Robinson v. Lupo, supra at 525-526, 690 N.Y.S.2d 640;  Babino v. City of New York, supra at 242, 650 N.Y.S.2d 778;  Hunter v. IBS Realty Mgt., 298 A.D.2d 557, 558, 748 N.Y.S.2d 677;  Garvin v. Rosenberg, supra at 388, 614 N.Y.S.2d 190).

The plaintiff's remaining contention is without merit.

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