| Morgan v Windham Realty, LLC |
| 2009 NY Slip Op 09196 [68 AD3d 828] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Patsy Morgan et al., Appellants, v Windham Realty, LLC,et al., Respondents, and Francis Company, L.P., et al., Defendants and Third-PartyPlaintiffs-Respondents. Corporate Service Network, Inc., et al. Third-PartyDefendants-Respondents. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), fordefendants-respondents. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (AntonPiotroski of counsel), for defendants and third-party plaintiffs/second third-partyplaintiffs-respondents. Faust Goetz Schenker & Blee LLP, New York, N.Y. (Lisa L. Gokhulsingh of counsel), forsecond third-party defendant-respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from anorder of the Supreme Court, Nassau County (Martin, J.), entered June 11, 2008, which, inter alia,granted the motion of the defendants Windham Realty, LLC, and Colors of Cold Spring HarborSalon & Makeup Studio for summary judgment dismissing the complaint insofar as assertedagainst them, and granted that branch of the cross motion of the defendants Francis Company,L.P., and Talbots, Inc., which was for summary judgment dismissing the complaint as assertedagainst them, and (2), as limited by their brief, from so much of an order of the same courtentered January 8, 2009, as, in effect, upon renewal, adhered to the original determination.
Ordered that the appeal from the order entered June 11, 2008 is dismissed, as that order wassuperseded by the order entered January 8, 2009, made upon renewal; and it is further,
Ordered that the order entered January 8, 2009 is affirmed insofar as appealed from; and it isfurther,[*2]
Ordered that one bill of costs is awarded to thedefendants and to the second third-party defendant, appearing separately and filing separatebriefs.
Contrary to the plaintiffs' contention, the plaintiff Patsy Morgan (hereinafter the plaintiff), ather deposition, failed to identify a "very sharp decline" and "rich . . . black asphalt,"which allegedly was slippery, as the causes of her fall on the subject driveway (see Bishop v Marsh, 59 AD3d 483[2009]). Thus, the defendants established their prima facie entitlement to judgment as a matter oflaw by demonstrating that the plaintiff was unable to identify the exact cause of her fall (see Costantino v Webel, 57 AD3d472 [2008]; Stanojevic v ScottoBros. Rest. Enters., Inc., 16 AD3d 575, 576 [2005]; Nelson v City of New York, 7 AD3d 589, 589-590 [2004];Hartman v Mountain Val. Brew Pub, 301 AD2d 570 [2003]; Robinson v Lupo,261 AD2d 525 [1999]).
In opposition, the plaintiffs submitted evidence demonstrating that, at some unspecified timeeither before or after the accident, the pavement was slippery when it rained, and that "carswould have a difficult time" traversing the driveway upon which the plaintiff fell. Such evidencewas insufficient to raise a triable issue of fact, as it is undisputed that the plaintiff, a pedestrian,fell on the pavement on a warm, sunny day. In light of the insufficiency of the evidencesubmitted by the plaintiffs on the issue of causation, a trier of fact would be required "to base afinding of proximate cause upon nothing more than speculation" (Louman v Town of Greenburgh, 60AD3d 915, 916 [2009]; see Costantino v Webel, 57 AD3d at 472; Zanki v Cahill, 2 AD3d 197, 199[2003], affd 2 NY3d 783 [2004]; Curran v Esposito, 308 AD2d 428, 429 [2003];cf. Stanojevic v Scotto Bros. Rest. Enters., Inc., 16 AD3d at 576), as it was "just as likelythat the accident could have been caused by some other factor, such as a misstep or loss ofbalance" (Teplitskaya v 3096 Owners Corp., 289 AD2d 477, 478 [2001]). The fact thatthe plaintiffs received information from the defendants Francis Company, L.P. (hereinafterFrancis), and Talbots, Inc. (hereinafter Talbots), that the subject driveway and adjacent parkinglot had been repaved nine days before the instant accident did not remedy the deficiency in theproof, submitted by the plaintiffs in opposition to the motion and the cross motion, that theplaintiff could not identify the cause of her fall (cf. Erikson v J.I.B. Realty Corp., 12 AD3d 344, 345 [2004];Sweeney v D & J Vending, 291 AD2d 443 [2002]; Charvala v Kelly & Dutch RealEstate, 273 AD2d 936 [2000]).
The plaintiffs' contention that Francis and Talbots failed, on their cross motion for summaryjudgment, to include an affidavit of a person with personal knowledge of the facts or appropriatedeposition testimony was not raised in the Supreme Court and, thus, is not properly before thisCourt (see Kruszka v City of NewYork, 29 AD3d 742, 743 [2006]; Medugno v City of Glen Cove, 279 AD2d510, 511 [2001]; Rosendale v Galin, 266 AD2d 444, 445 [1999]; Gross v Aetna Cas.& Sur. Co., 240 AD2d 468, 469 [1997]).
The Supreme Court's determination, in effect, upon renewal, in which it adhered to itsoriginal determination, was correct, since the new facts presented by the plaintiffs did not changethe outcome (see CPLR 2221 [e]).
The plaintiffs' remaining contentions are without merit.
In light of our determination, we need not address the contention of the second third-partydefendant Blacktop Unlimited, Inc., that the papers submitted by the plaintiffs with respect tothat branch of their motion which was for leave to renew were procedurally defective. Rivera,J.P., Miller, Dickerson and Roman, JJ., concur. [Prior Case History: 2008 NY Slip Op31631(U).]