| Califano v Maple Lanes |
| 2012 NY Slip Op 00743 [91 AD3d 896] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| Ronald Califano, as Administrator of the Estate of Albert Califano,Deceased, Respondent, v Maple Lanes, Appellant. |
—[*1] Talkin, Muccigrosso & Roberts, LLP, New York, N.Y. (Mark Muccigrosso of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Schmidt, J.), entered March 7, 2011, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
On November 16, 2005, the decedent, the plaintiff's father, allegedly was injured when heslipped and fell at a bowling alley owned by the defendant. Prior to the plaintiff commencing thisaction against the defendant to recover damages for the decedent's personal injuries, the decedentpassed away of natural causes in January 2008.
At his deposition, the plaintiff testified that, after receiving a phone call on the date of theaccident advising him that the decedent had fallen, he arrived at the bowling alley to find thedecedent on the floor near the foul line of a bowling lane. He testified that the decedent's friendtold him that the decedent had fallen because there was "some stuff on the floor." He also statedthat he observed "sticky, sort of wet like . . . dried soda or something like that,"which was clear in color, near the foul line. When deposed, the decedent's friend testified that, onthe date of the accident, he was bowling two lanes away from where the decedent was bowlingand, although he witnessed the decedent fall, he did not inspect the lane or see what caused thedecedent to fall.
The defendant moved for summary judgment dismissing the complaint. The Supreme Courtdenied the motion. The defendant appeals, and we reverse.
A defendant can establish its prima facie entitlement to judgment as a matter of law byshowing that the plaintiff cannot identify the cause of the accident (see McFadden v 726 Liberty Corp., 89AD3d 1067, 1067 [2011]; Patrick vCostco Wholesale Corp., 77 AD3d 810 [2010]; Blochl v RT Long Is. Franchise, LLC, 70 AD3d 993, 993 [2010];Miller v 7-Eleven, Inc., 70 AD3d791, 791 [2010]; Bolde v Borgata[*2]Hotel Casino & Spa, 70 AD3d 617, 618 [2010]; Hunt v Meyers, 63 AD3d 685[2009]; Louman v Town ofGreenburgh, 60 AD3d 915, 916 [2009]; Costantino v Webel, 57 AD3d 472 [2008]; see also Capasso v Capasso, 84 AD3d997, 998 [2011]). " '[A] plaintiff's inability to identify the cause of the fall is fatal to thecause of action because a finding that the defendant's negligence, if any, proximately caused the. . . injuries would be based on speculation' " (Rajwan v 109-23 Owners Corp., 82 AD3d 1199, 1200 [2011],quoting Patrick v Costco WholesaleCorp., 77 AD3d 810, 810 [2010]; see Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d 1286,1287 [2011]).
Here, the defendant established its prima facie entitlement to judgment as a matter of law bysubmitting, inter alia, the deposition testimony of the plaintiff and the decedent's friend, whichdemonstrated that the plaintiff could not identify the cause of the decedent's fall without resortingto speculation (see McFadden v 726 Liberty Corp., 89 AD3d at 1067; Aguilar v Anthony, 80 AD3d 544,545 [2011]; Patrick v Costco WholesaleCorp., 77 AD3d 810 [2010]; Blochl v RT Long Is. Franchise, LLC, 70 AD3d at993; Miller v 7-Eleven, Inc., 70 AD3d at 791; Bolde v Borgata Hotel Casino &Spa, 70 AD3d at 618; Hunt vMeyers, 63 AD3d 685 [2009]; Louman v Town of Greenburgh, 60 AD3d at 916;Costantino v Webel, 57 AD3d472 [2008]). Although the decedent's friend testified that he made a complaint with respectto stickiness near the foul line of the lane in which he was bowling to one of the defendant'semployees prior to the accident, he speculated as to what, if any, complaints were made withrespect to the decedent's lane. Moreover, even if a complaint had been made about a substance onthe subject bowling lane, there was no evidence in the record to establish that this is what causedthe decedent, who had bowled on the lane without incident for two hours before the accident, tofall.
In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]; see also Miles v County of Dutchess, 85 AD3d 878, 878-879[2011]; Aguilar v Anthony, 80 AD3d at 545; McCord v Olympia & York Maiden Lane Co., 8 AD3d 634[2004]). Where it is just as likely that some factor other than negligence by the defendant, such asa misstep or loss of balance, could have caused an accident, any determination by the trier of factas to causation would be based upon sheer speculation (see Alabre v Kings Flatland Car CareCtr., Inc., 84 AD3d at 1287; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434, 435[2006]). Contrary to the plaintiff's contention, there was no evidence connecting the alleged"sticky" condition near the foul line of the lane where the decedent was bowling with his fall(see Miles v County of Dutchess, 85 AD3d at 878-879; Aguilar v Anthony, 80AD3d at 545).
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment dismissing the complaint. Skelos, J.P., Hall, Austin and Miller, JJ., concur.