| Lane v Texas Roadhouse Holdings, LLC |
| 2012 NY Slip Op 04466 [96 AD3d 1364] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| Gertrude A. Lane et al., Respondents, v Texas RoadhouseHoldings, LLC, Appellant. |
—[*1] Richard J. Sardano, PC, Liverpool (John E. Heisler, Jr., of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), enteredMay 3, 2011 in a personal injury action. The order denied the motion of defendant for summaryjudgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action alleging that a "dangerous and defectivecondition" on defendant's property caused Gertrude A. Lane (plaintiff) to slip and fall. Defendantappeals from an order denying its motion for summary judgment dismissing the complaint. Wereject the contention of defendant that it met its initial burden on the motion by establishing as amatter of law that plaintiffs were unable to identify what caused plaintiff to fall " 'withoutengaging in speculation' " (Smart vZambito, 85 AD3d 1721, 1721 [2011]). "It is well established . . . that '[a]moving party must affirmatively [demonstrate] the merits of its cause of action or defense anddoes not meet its burden by noting gaps in its opponent's proof' " (Dodge v City of HornellIndus. Dev. Agency, 286 AD2d 902, 903 [2001], quoting Orcutt v American LinenSupply Co., 212 AD2d 979, 980 [1995]; see Brown v Smith, 85 AD3d 1648, 1649 [2011]). "Although[m]ere conclusions based upon surmise, conjecture, speculation or assertions are withoutprobative value . . . , a case of negligence based wholly on circumstantial evidencemay be established if the plaintiffs show[ ] facts and conditions from which the negligence of thedefendant and the causation of the accident by that negligence may be reasonably inferred" (Seelinger v Town of Middletown, 79AD3d 1227, 1229 [2010] [internal quotation marks omitted]). Here, although plaintiff wasunable to identify the specific source of her fall at her deposition due to the onset of unrelatedmental status issues, plaintiffs "submitt[ed] evidence establishing that she fell in the immediatevicinity of [several uneven and unsteady pavement blocks of which defendant had actual notice],thereby rendering any other potential cause of her fall 'sufficiently remote or technical to enable[a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to bedrawn from the evidence' " (Nolan vOnondaga County, 61 AD3d 1431, 1432 [2009]).[*2]
We have considered the remaining contentions of theparties and conclude that they are without merit, or need not be addressed in light of ourdetermination. Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.