| Thompson v Commack Multiplex Cinemas |
| 2011 NY Slip Op 03230 [83 AD3d 929] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Lucille Thompson, Respondent, v Commack MultiplexCinemas et al., Appellants. |
—[*1] Siben and Siben, LLP, Bay Shore, N.Y. (Alan G. Farber of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Whelan, J.), dated November 9, 2009, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The plaintiff allegedly was injured when she slipped and fell on exterior steps at thedefendants' movie theater. She commenced this action against the defendants, alleging that thesteps were in a dangerous condition because of, inter alia, shoddy repair work and loose concrete.The defendants moved for summary judgment dismissing the complaint, contending, amongother things, that there was no causal link between their alleged negligence and the plaintiff's fall.The Supreme Court denied the motion. We reverse.
The defendants made a prima facie showing of their entitlement to judgment as a matter oflaw by submitting, inter alia, the plaintiff's deposition testimony, wherein she admitted that shedid not know the cause of her accident, or what caused her to lose her balance and fall (see Cangro v Noah Bldrs., Inc., 52AD3d 758, 759 [2008]; Plowden vStevens Partners, LLC, 45 AD3d 659, 660 [2007]; Sanchez v City of New York,305 AD2d 487 [2003]). While the plaintiff also testified at her deposition that there werefragments of loose concrete and repair patches on the step from which she allegedly fell, and theplaintiff's husband testified at his deposition that the steps were cracked and chipped, adetermination that these alleged defects were the proximate cause of the plaintiff's accident,rather than a misstep or loss of balance, would be speculative (see Corrado v Vath, 70 AD3d 624,625 [2010]; Rodriguez v Cafaro, 17AD3d 658 [2005]). "[P]roximate cause may be inferred from the facts and circumstancesunderlying the injury" only when the evidence is "sufficient to permit a finding based on logicalinferences from the record and not upon speculation alone" (Hartman v Mountain Val. BrewPub, 301 AD2d 570, 570 [2003]).[*2]
In opposition, the plaintiff failed to raise a triable issue offact (see Fox v Watermill Enters.,Inc., 19 AD3d 364 [2005]). The plaintiff submitted the affidavit of an engineeringexpert, who opined that the loose fragments of concrete, among other things, would foreseeablylead to an accident, and that the steps violated several building code provisions. Since theplaintiff did not know what caused her to fall, it would be speculative to conclude that any of thealleged defects or violations proffered in the engineer's affidavit proximately caused theplaintiff's fall (see Murphy v New YorkCity Tr. Auth., 73 AD3d 1143, 1144 [2010]). Furthermore, the plaintiff's correctionsheet to her deposition testimony, which, without any explanation, indicated that she rememberedslipping on loose fragments of concrete and uneven tread, and falling because the stairs were notmaintained properly, presented feigned issues of fact "tailored to avoid the consequences of herearlier testimony and are, therefore, insufficient to raise a triable issue of fact" (Smith v Costco Wholesale Corp., 50AD3d 499, 501 [2008]).
Accordingly, the Supreme Court should have granted the defendants' motion for summaryjudgment dismissing the complaint. Mastro, J.P., Florio, Belen and Chambers, JJ., concur.