| Alabre v Kings Flatland Car Care Ctr., Inc. |
| 2011 NY Slip Op 04611 [84 AD3d 1286] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Joseph Alabre, Respondent, v Kings Flatland Car CareCenter, Inc., Also Known as 5808 Flatlands Realty, Ltd., Appellant, et al.,Defendant. |
—[*1] Mark J. Rayo, P.C., Brooklyn, N.Y. (Louis A. Badolato of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Kings Flatland Car CareCenter, Inc., also known as 5808 Flatlands Realty, Ltd., appeals from so much of an order of theSupreme Court, Kings County (Martin, J.), dated December 15, 2010, as, in effect, denied thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Kings Flatland Car Care Center, Inc., also known as5808 Flatlands Realty, Ltd., is granted.
On February 14, 2007, the plaintiff allegedly was injured when he slipped and fell whiledelivering auto parts to Kings Flatland Car Care Center, Inc., located at 5808 Flatlands Avenue inBrooklyn. The Supreme Court granted that branch of the defendants' motion which was forsummary judgment dismissing the complaint insofar as asserted against the defendant HarvinderSingh, the president of Kings Flatland Car Care Center, Inc., and the sole shareholder of 5808Flatlands Realty, Ltd., and, in effect, denied that branch of the defendants' motion which was forsummary judgment dismissing the complaint insofar as asserted against the defendant KingsFlatland Car Care Center, Inc., also known as 5808 Flatlands Realty, Ltd. (hereinafter theappellant). We reverse the order insofar as appealed from.
The appellant established its prima facie entitlement to judgment as a matter of law bydemonstrating that the plaintiff was unable to identify the cause of his fall. " '[A] plaintiff'sinability to identify the cause of the fall is fatal to the cause of action because a finding that thedefendant's negligence, if any, proximately caused the plaintiff's injuries would be based onspeculation' " (Rajwan v 109-23 Owners Corp., 82 AD3d 1199, 1200 [2011], quotingPatrick v Costco Wholesale Corp., 77 AD3d 810, 810-811 [2010]). In opposition, theplaintiff failed to raise a triable issue of fact. The crux of the plaintiff's deposition testimony wasthat because the floor of the repair shop at the appellant's premises was always dirty, he musthave slipped on oil or grease. Since it is just [*2]as likely that theplaintiff's fall could have been caused by a loss of balance, a misstep, or moisture on the bottomof his shoes caused by the snow which had fallen the previous evening, the plaintiff failed toraise a triable issue of fact as to the cause of the accident (see Manning v 6638 18th Ave.Realty Corp., 28 AD3d 434, 435 [2006]; Oettinger v Amerada Hess Corp., 15 AD3d638, 639 [2005]).
The plaintiff's remaining contentions either are without merit or need not be reached in lightof our determination.
Accordingly, the Supreme Court should have granted that branch of the defendants' motionwhich was for summary judgment dismissing the complaint insofar as asserted against theappellant. Angiolillo, J.P., Florio, Belen and Roman, JJ., concur.