| Rick v DiFusco |
| 2010 NY Slip Op 00128 [69 AD3d 603] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Susan Rick, Appellant, v Paul J. DiFusco et al.,Respondents. |
—[*1] Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Winslow, J.), entered January 28, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when she tripped and fell over a raised flagstone on thesidewalk in front of the defendants' home. The plaintiff subsequently commenced this actionalleging, inter alia, that the defendants had created a dangerous condition by plantingpachysandra, a type of evergreen groundcover, and allowing it to spread onto the publicsidewalk, thereby obscuring the raised flagstone. However, at her deposition, the plaintifftestified that she was aware of the existence of a raised flagstone in front of the defendants'home, and had probably seen it from a distance prior to her fall. The plaintiff further testified,that just before her fall, she heard the sound of children screaming, and that when she turned herhead to the left to see what was wrong, her foot "hit something" and she "went flying." Thedefendants thereafter moved for summary judgment and the Supreme Court granted their motion,concluding that, even if the allegedly overgrown pachysandra constituted a dangerous conditionfor which the defendants could be held liable, it was not a proximate cause of the accident as amatter of law. We affirm.
The defendants made a prima facie showing of their entitlement to judgment as a matter oflaw through the submission of the plaintiff's deposition testimony, which demonstrated that thedefendants' alleged negligence in allowing pachysandra to spread onto the public sidewalk wasnot a proximate cause of the accident (see generally Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]). The affidavit which the plaintiff submitted in opposition to the motion forsummary judgment was insufficient to raise a triable issue of fact. Accordingly, the courtproperly granted the defendants' motion. Santucci, J.P., Balkin, Eng and Chambers, JJ., concur.[Prior Case History: 2009 NY Slip Op 30247(U).]