| Capasso v Capasso |
| 2011 NY Slip Op 04187 [84 AD3d 997] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Angelika Capasso, Appellant, v Susanne Capasso et al.,Respondents. |
—[*1] Abamont & Associates (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger,Uniondale, N.Y. [Kathleen D. Foley], of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Spinner, J.), entered March 24, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On June 27, 2007, at approximately 10:30 a.m., the plaintiff was walking on the tile floor inthe basement of the defendants' home when she fell.
In a slip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal to theaction because a finding that the defendant's negligence, if any, proximately caused the plaintiff'sinjuries would be based on speculation (see Patrick v Costco Wholesale Corp., 77 AD3d 810 [2010]; see also Louman v Town ofGreenburgh, 60 AD3d 915, 916 [2009]; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434, 435[2006]; Oettinger v Amerada HessCorp., 15 AD3d 638, 639 [2005]). Here, the defendants established their prima facieentitlement to judgment as a matter of law by submitting the signed statement of the plaintiff, inwhich she admitted that she did not know what caused her to fall on the date of the accident(see Patrick v Costco Wholesale Corp., 77 AD3d at 810; Miller v 7-Eleven, Inc., 70 AD3d791 [2010]; Hunt v Meyers, 63AD3d 685 [2009]; Reiff vBeechwood Browns Rd. Bldg. Corp., 54 AD3d 1015 [2008]; Kletke v GOS Corp., 51 AD3d875 [2008]; DeSantis v Lessing's,Inc., 46 AD3d 742 [2007]; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434 [2006];Curran v Esposito, 308 AD2d 428 [2003]; Visconti v 110 Huntington Assoc.,272 AD2d 320 [2000]).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's affidavit, inwhich she identified the cause of her fall as possibly water in the area where she fell, presented afeigned issue of fact, designed to avoid the consequences of her earlier signed statement, and thuswas insufficient to defeat the defendants' motion (see Hunt v Meyers, 63 AD3d at 685; Hughes-Berg v Mueller, 50 AD3d856, 858 [2008]; Karwowski v NewYork City Tr. Auth., 44 AD3d 826 [2007]; Denicola v Costello, 44 AD3d 990 [2007]; Manning v 663818th Ave. Realty Corp., 28 AD3d at 434; [*2]Tejada v Jonas, 17 AD3d 448[2005]; Nieves v ISS Cleaning Servs. Group, 284 AD2d 441 [2001]; Califano vCampaniello, 243 AD2d 528 [1997]; Garvin v Rosenberg, 204 AD2d 388 [1994]).The Supreme Court correctly determined that the affidavit of the plaintiff's husband, alsosubmitted in opposition to the defendants' motion, was not probative of the condition on the floorat the time of the subject accident (see Patrick v Costco Wholesale Corp., 77 AD3d at810; see also Madalinski vStructure-Tone, Inc., 47 AD3d 687 [2008]).
The plaintiff's contention that summary judgment was granted prematurely under the facts ofthis case is without merit. The belief that additional discovery might reveal something helpful toher case does not provide a basis pursuant to CPLR 3212 (f) for postponing a determination ofsummary judgment in this case (see Morissaint v Raemar Corp., 271 AD2d 586 [2000]).Covello, J.P., Eng, Chambers and Miller, JJ., concur.