| DiBartolomeo v St. Peter's Hosp. of the City of Albany |
| 2010 NY Slip Op 04100 [73 AD3d 1326] |
| May 13, 2010 |
| Appellate Division, Third Department |
| Ruth E. DiBartolomeo, Individually and as Executor of AmedeoDiBartolomeo, Deceased, Respondent, v St. Peter's Hospital of the City of Albany,Appellant. |
—[*1] Powers & Santola, L.L.P., Albany (Michael J. Hutter of counsel), for respondent.
Stein, J. Appeal from an order of the Supreme Court (Teresi, J.), entered October 14, 2009 inAlbany County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Amedeo DiBartolomeo fell and struck his head while attempting to descend a temporarycurb ramp placed on defendant's property as part of a construction project. As a result of the fall,DiBartolomeo suffered a fractured skull and died 20 days later from complications due to aintracerebral hemorrhage. Plaintiff, DiBartolomeo's wife, commenced this action based onpremises liability, alleging that DiBartolomeo's injuries and resultant death were due to thedefective condition of the ramp. Defendant moved for summary judgment dismissing thecomplaint, asserting that plaintiff was unable to establish that any negligence of defendant wasthe proximate cause of DiBartolomeo's injuries or that defendant had notice of the allegeddefective condition. Supreme Court denied the motion, prompting this appeal.
We affirm. Defendant's sole contention on appeal is that it is entitled to summary [*2]judgment because plaintiff is unable to provide direct evidence ofthe proximate cause of DiBartolomeo's fall. We disagree. Unlike at trial, where plaintiff will bearthe initial burden of establishing that defendant's negligence was the proximate cause ofDiBartolomeo's fall, on this motion for summary judgment, defendant bears the initial burden ofdemonstrating its entitlement to judgment as a matter of law by proffering evidentiary proof inadmissible form (see Rothbard v Colgate Univ., 235 AD2d 675, 678 [1997]; seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs.,46 NY2d 1065, 1067-1068 [1979]). Only if that burden is met does the burden then shift toplaintiff to raise a triable issue of fact (see Friends of Animals v Associated Fur Mfrs.,46 NY2d at 1068).
Here, defendant supported its motion for summary judgment with an attorney's affidavit andthe exhibits attached thereto. Inasmuch as defendant's attorney had no personal knowledge of thefacts, Supreme Court correctly determined that her affidavit did not provide a factual basis forthe relief sought. Furthermore, to the extent the exhibits submitted with such affidavit were inadmissible form, they failed to establish that defendant maintained its property in a reasonablysafe condition or that defendant did not create the allegedly dangerous condition or have actualor constructive knowledge thereof, as necessary to establish its entitlement to judgment as amatter of law (see Montuori v Town of Colonie, 277 AD2d 643, 644 [2000]). Likewise,defendant failed to demonstrate, as a matter of law, that the alleged condition of the ramp wasnot a proximate cause of the accident (see Mazzio v Highland Homeowners Assn. & Condos, 63 AD3d1015, 1016 [2009]) or that DiBartolomeo's actions "were unforeseeable or of such acharacter as to constitute a superseding cause absolving [it] from potential liability" (id.;see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 312 [1980]). Defendant's argumentthat it was not required to demonstrate those facts because plaintiff cannot establish theproximate cause of DiBartolomeo's accident is unavailing, as defendant's burden may not be metby pointing to gaps in plaintiff's proof (see Dow v Schenectady County Dept. of Social Servs., 46 AD3d1084, 1084 [2007]; Johnson City Cent. School Dist. v Fidelity & Deposit Co. ofMd., 272 AD2d 818, 821 [2000]; Rothbard v Colgate Univ., 235 AD2d at 678).Thus, the burden never shifted to plaintiff to demonstrate a triable issue of fact and SupremeCourt properly denied defendant's motion on that basis.
However, even if defendant had met its initial burden of proof, a view of the evidence in thelight most favorable to plaintiff leads to the conclusion that plaintiff raised a question of factsufficient to defeat defendant's motion (see generally Reynolds v Sead Dev. Group, 257AD2d 940, 941 [1999]). "As a general rule, the question of proximate cause is to be decided bythe finder of fact" (Derdiarian v Felix Contr. Corp., 51 NY2d at 312). While it is truethat a material issue of fact may not rest upon speculation (see Piccirillo vBeltrone-Turner, 284 AD2d 854, 855-856 [2001]), "[t]he absence of direct evidence doesnot require a ruling in defendant['s] favor, for proximate cause may be inferred from the factsand circumstances surrounding the event" (see Ellis v County of Albany, 205 AD2d1005, 1007 [1994]). Here, plaintiff testified that the surface on which she and her husband werewalking just before he fell was uneven. Plaintiff also submitted evidence that there was adepression in the ramp approximately one-half-inch deep and measuring approximately 8½inches wide by 8½ inches long and that the distance between this depression to a bloodstain where DiBartolomeo's head hit the ground was the same as DiBartolomeo's height. Thisevidence presented a theory of liability—that DiBartolomeo lost his balance and fell whentraversing the depression in the ramp—and facts in support thereof on which a jury couldbase a verdict (compare Kane v Estia Greek Rest., 4 AD3d 189, 190-191 [2004];Piccirillo v Beltrone-Turner, 284 AD2d at 856). Accordingly, Supreme Court properly[*3]denied defendant's motion.
Peters, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,with costs. [Prior Case History: 2009 NY Slip Op 31941(U).]