| Patrick v Costco Wholesale Corp. |
| 2010 NY Slip Op 07522 [77 AD3d 810] |
| October 19, 2010 |
| Appellate Division, Second Department |
| Lois Patrick, Respondent, v Costco WholesaleCorporation, Appellant. |
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In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (Markey, J.), dated September 10, 2009, which denied itsmotion 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 granted.
The plaintiff allegedly was injured when she slipped and fell in the defendant's store. Shecould not identify the reason for her fall, but concluded that she slipped on ice cream that anemployee noticed on the floor a few feet away approximately 20 minutes after the accident.There were no skid or track marks where the ice cream was located and no evidence as to howlong it had been on the floor. After discovery was completed, the defendant moved for summaryjudgment dismissing the complaint. The Supreme Court denied the motion. We reverse.
In a slip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal to thecause of action because a finding that the defendant's negligence, if any, proximately caused theplaintiff's injuries would be based on speculation (see Louman v Town of Greenburgh, 60 AD3d 915, 916 [2009]; Manning v 6638 18th Ave. RealtyCorp., 28 AD3d 434, 435 [2006]; Oettinger v Amerada Hess Corp., 15 AD3d 638, 639 [2005]). Here,the defendant established its prima facie entitlement to summary judgment by demonstrating thatthe plaintiff could not identify the cause of her fall (see Scott v Rochdale Vil., Inc., 65 AD3d 621 [2009]; Costantino v Webel, 57 AD3d 472[2008]; Slattery v O'Shea, 46 AD3d669, 670 [2007]; Bottiglieri vWheeler, 38 AD3d 818 [2007]). Given that inability, and the lack of any skid markswhere the ice cream was located or evidence as to how long it had been there, any conclusion thatthe ice cream caused the plaintiff to fall would be based entirely on speculation (see Slattery vO'Shea, 46 AD3d at 670; cf.Melnikov v 249 Brighton Corp., 72 AD3d 760, 761 [2010]). In opposition, the plaintifffailed to raise a triable issue of fact (see Hartman v Mountain Val. Brew Pub, 301 AD2d570 [2003]). Consequently, the defendant's motion for summary judgment dismissing thecomplaint should [*2]have been granted. Fisher, J.P., Dillon,Florio and Lott, JJ., concur.