| Bernardo v 444 Rte. 111, LLC |
| 2011 NY Slip Op 03010 [83 AD3d 753] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Maryann Bernardo, Respondent, v 444 Route 111, LLC,Appellant. |
—[*1] Michael Kimmelman P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J.Isaac and Jillian Rosen], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Whelan, J.), dated April 5, 2010, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff tripped and fell at her workplace, allegedly after stepping into a depression inthe floor that was approximately 1½ inches deep. The plaintiff commenced this actionagainst the owner of the building. The defendant moved for summary judgment dismissing thecomplaint, and the Supreme Court denied the motion.
"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 Howe v Flatbush Presbyt. Church,48 AD3d 419, 420 [2008]; Jacksonv Fenton, 38 AD3d 495 [2007]). The defendant, in support of its motion for summaryjudgment dismissing the complaint, submitted, among other things, the transcript of the plaintiff'sdeposition testimony. Contrary to the defendant's contention, although the plaintiff wasquestioned at her deposition about another possible cause of her fall, the plaintiff's testimony didnot establish that she did not know what caused her to fall. Rather, her testimony merely raised atriable issue of fact as to whether and to what extent her fall was caused by the depression in thefloor (see Boyd v Rome Realty LeasingLtd. Partnership, 21 AD3d 920 [2005]; Garcia v New York City Tr. Auth., 269AD2d 142 [2000]).
Contrary to the defendant's contention, it did not make a prima facie showing that thedepression in the floor, as a matter of law, did not constitute a structural defect, the repair ofwhich was its responsibility under its lease with the plaintiff's employer.[*2]
Finally, the defendant failed to make a prima facieshowing that it lacked actual or constructive notice of the allegedly hazardous condition. Theevidence it submitted in support of its motion for summary judgment revealed triable issues offact as to whether the condition could have been readily discovered by the defendant's propertymanagers during their periodic inspections of the premises, or by one of the defendant'sprincipals, who maintained an office and worked every day in the office suite where the accidentoccurred (see Pryzywalny v New YorkCity Tr. Auth., 69 AD3d 598 [2010]).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint, without regard to the sufficiency of the plaintiff's oppositionpapers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Mei Xiao Guo v Quong Big RealtyCorp., 81 AD3d 610 [2011]). Prudenti, P.J., Dillon, Balkin and Sgroi, JJ., concur.