| Melnikov v 249 Brighton Corp. |
| 2010 NY Slip Op 03082 [72 AD3d 760] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Rostislav Melnikov, Respondent-Appellant, v 249Brighton Corp. et al., Appellants-Respondents. |
—[*1] Siler & Ingber, LLP, Mineola, N.Y. (Michelle B. Kanter of counsel), forrespondent-appellant.
In an action to recover damages for personal injuries, the defendants appeal from so much ofan order of the Supreme Court, Kings County (Ruchelsman, J.), dated August 26, 2009, asdenied their motion for summary judgment dismissing the complaint, and the plaintiffcross-appeals from so much of the same order as denied that branch of his cross motion whichwas for summary judgment on the issue of liability.
Ordered that the cross appeal is dismissed as abandoned; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The defendant M & I International Foods, Inc. (hereinafter M & I), operated a grocery storeat 249 Brighton Beach Avenue in Brooklyn. The premises were owned by the defendant 249Brighton Corp., which leased it to M & I. On September 14, 2006, the plaintiff slipped and fellin front of M & I's store. At his deposition, the plaintiff stated that there were a number ofgarbage bags approximately one to two feet from where he fell, and at least one of them was tornand leaking a substance or debris onto the sidewalk. The defendants moved for summaryjudgment dismissing the complaint, claiming that the plaintiff could not identify the cause of hisfall, and that they neither created nor had actual or constructive notice of any alleged conditionwhich caused the plaintiff's fall. The plaintiff cross-moved, inter alia, for summary judgment onthe issue of liability. In the order appealed from, the Supreme Court denied both the defendants'motion and the plaintiff's cross motion. We affirm the order insofar as appealed from.
" 'A defendant who moves for summary judgment in a slip-and-fall case has the initialburden of making a prima facie showing that it neither created the hazardous condition nor hadactual or constructive notice of its existence for a sufficient length of time to discover andremedy it' " (Aguirre v [*2]Paul, 54 AD3d 302, 303 [2008], quoting Prusak v New York City Hous. Auth.,43 AD3d 1022, 1022 [2007]; see Lewis v Metropolitan Transp. Auth., 64 NY2d670, 671 [1984]). " 'In a trip and fall case, [a] plaintiff's inability to identify the cause of his orher fall is fatal to his or her cause of action, since, in that instance, the trier of fact would berequired to base a finding of proximate cause upon nothing more than speculation' " (Antonia v Srour, 69 AD3d 666,666 [2010], quoting Louman v Town ofGreenburgh, 60 AD3d 915, 916 [2009]).
Here, contrary to the defendants' contention, the plaintiff sufficiently identified the allegedcause of his fall—one or more torn garbage bags, located one to two feet from where hefell, leaking a substance and/or debris onto the sidewalk. The defendants failed to establish theirprima facie entitlement to judgment as a matter of law. The defendants failed to demonstrate,prima facie, that M & I did not create the condition which allegedly caused the plaintiff's fall,and failed to demonstrate that 249 Brighton Corp., the property owner, maintained the sidewalkin a reasonably safe condition, as required by Administrative Code of the City of New York§ 7-210 (see generally Serano vNew York City Hous. Auth., 66 AD3d 867, 868 [2009]). Because the defendants failedto satisfy their prima facie burden, the Supreme Court properly denied the defendants' motion forsummary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff'sopposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Napolitano v Suffolk County Dept. of Pub.Works, 65 AD3d 676, 677 [2009]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Fisher, J.P., Dillon, Dickerson and Belen, JJ., concur.