| Rajwan v 109-23 Owners Corp. |
| 2011 NY Slip Op 02649 [82 AD3d 1199] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Ezra Rajwan, Respondent, v 109-23 Owners Corporation,Appellant-Respondent, and Commercial Maintenance Corporation,Respondent-Appellant. |
—[*1] Weiner, Millo, Morgan & Bonanno, LLC (Gannon, Rosenfarb & Moskowitz, New York,N.Y. [Lisa L. Gokhulsingh], of counsel), for respondent-appellant. Hoberman & Trepp, P.C., Bronx, N.Y. (Adam Raclaw of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant 109-23 OwnersCorporation appeals, as limited by its notice of appeal and brief, from so much of an order of theSupreme Court, Queens County (Rosengarten, J.), entered May 26, 2010, as denied its motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it,and the defendant Commercial Building Maintenance Corporation cross-appeals, as limited by itsbrief, from so much of the same order as denied its cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it.
Ordered that the order is reversed, on the law, with one bill of costs to the defendants payableby the plaintiff, and the motion and cross motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against the defendants are granted.
The plaintiff allegedly was injured when he slipped and fell while attempting to descend aninterior staircase in a building owned by the defendant 109-23 Owners Corporation (hereinafter109-23 Owners). At his deposition, the plaintiff was asked if he slipped because the step wasslippery or because of a crack in the step. The plaintiff responded, "I really wouldn't know to tellyou. I just put my foot forward and stepped on something and I flew in the air. So, I don't recallseeing or feeling anything." When the plaintiff was asked whether his right foot ever touched thesecond step, he replied, "I don't know exactly. I don't recall what happened. I think it did. I don'tknow." 109-23 Owners moved, and the defendant Commercial Building MaintenanceCorporation, which provided janitorial services in the building (hereinafter together thedefendants), cross- moved for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them. The Supreme Court denied the motion and the cross motion. Wereverse.
"In a slip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal [*2]to the cause of action because a finding that the defendant'snegligence, if any, proximately caused the plaintiff's injuries would be based on speculation"(Patrick v Costco Wholesale Corp., 77 AD3d 810, 810 [2010]; see Boudreau-Grillo vRamirez, 74 AD3d 1265, 1267 [2010]; Louman v Town of Greenburgh, 60 AD3d915, 916 [2009]). Here, the defendants established their prima facie entitlement to judgment as amatter of law by submitting, inter alia, the plaintiff's deposition testimony, which demonstratedthat the plaintiff could not identify the cause of his fall (see Patrick v Costco WholesaleCorp., 77 AD3d at 810; Scott v Rochdale Vil., Inc., 65 AD3d 621 [2009];Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434, 435 [2006]).
In opposition, the plaintiff failed to raise a triable issue of fact as to the cause of the accident."Since it is just as likely that the accident could have been caused by some other factor, such as amisstep or loss of balance, any determination by the trier of fact as to the cause of the accidentwould be based upon sheer speculation" (Teplitskaya v 3096 Owners Corp., 289 AD2d477, 478 [2001]; see Manning v 6638 18th Ave. Realty Corp., 28 AD3d at 435).Although the engineer's report alleged that unsafe conditions in the staircase where the plaintifffell violated various provisions of the building code, the plaintiff presented no evidenceconnecting these alleged violations to his fall (see Costantino v Webel, 57 AD3d 472[2008]; Reiff v Beechwood Browns Rd. Bldg. Corp., 54 AD3d 1015 [2008]).Accordingly, the Supreme Court should have granted the motion and cross motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against thedefendants.
In light of our determination, we need not reach the parties' remaining contentions. Mastro,J.P., Skelos, Balkin and Roman, JJ., concur.