| Antonia v Srour |
| 2010 NY Slip Op 00213 [69 AD3d 666] |
| January 12, 2010 |
| Appellate Division, Second Department |
| Dominga Antonia, Respondent, v Joyce Srour,Respondent. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Danielle SaleseTauber and Patrick Lawless of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Balter, J.), dated December 10, 2008, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The plaintiff commenced this action to recover damages for personal injuries she allegedlysustained when she fell on a stairway as she was leaving the defendant's home. The defendantmoved for summary judgment dismissing the complaint, asserting, inter alia, that the plaintifffailed to identify the cause of her accident. The Supreme Court granted the defendant's motion.We reverse.
"In a trip and fall case, [a] plaintiff's inability to identify the cause of his or her fall is fatal tohis or her cause of action, since, in that instance, the 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] [internal quotation marks and citations omitted]; see Knox v United Christian Church ofGod, Inc., 65 AD3d 1017 [2009]; Scott v Rochdale Vil., Inc., 65 AD3d 621 [2009]; Howe v Flatbush Presbyt. Church, 48AD3d 419, 420 [2008]; Jackson vFenton, 38 AD3d 495 [2007]; Hartman v Mountain Val. Brew Pub, 301 AD2d570 [2003]). At her deposition, the plaintiff testified that, as she was descending the stairs, herfoot "twisted," and she fell. She did not know what caused her foot to twist. However, she alsotestified that she "tried to grab on to something but there was no handrails, that's why I fell."Moreover, photographs demonstrate that there was no handrail. The defendant thus failed toestablish her prima facie entitlement to judgment as a matter of law (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Even if the plaintiff's fall was precipitatedby a misstep, given her testimony that she reached out to try to stop her fall, there is an issue offact as to whether the absence of a handrail was a proximate cause of her injury (see Cusumano v City of New York, 63AD3d 5 [2009]; Palmer v 165 E.72nd Apt. Corp., 32 AD3d 382 [2006]; Scala v Scala, 31 AD3d 423, 424 [2006]; [*2]Asaro vMontalvo, 26 AD3d 306, 307 [2006]; Viscusi v Fenner, 10 AD3d 361, 362 [2004]; Kanarvogel vTops Appliance City, 271 AD2d 409, 411 [2000]; Hotzoglou v Hotzoglou, 221AD2d 594 [1995]; Lattimore v Falcone, 35 AD2d 1069 [1970]; see also Christian v Railroad Deli Grocery,57 AD3d 599, 601 [2008]; Jackson v Fenton, 38 AD3d 495 [2007]). Accordingly, theSupreme Court erred in granting the defendant's motion for summary judgment dismissing thecomplaint. Skelos, J.P., Dickerson, Eng and Sgroi, JJ., concur.