| Dennis v Lakhani |
| 2013 NY Slip Op 00061 [102 AD3d 651] |
| January 9, 2013 |
| Appellate Division, Second Department |
| Henry Lee Dennis, Respondent, v Rashan Lakhaniet al., Appellants. |
—[*1] Borda, Kennedy, Alsen & Gold, LLP, Bay Shore, N.Y. (Peter J. Alsen of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Suffolk County (Whelan, J.), dated December 14, 2011,which denied their motion, in effect, for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion,in effect, for summary judgment dismissing the complaint is granted.
On the evening of November 12, 2008, the plaintiff allegedly was injured when heslipped and fell while walking down stairs leading to a basement apartment in a buildingowned by the defendants. The plaintiff commenced this action against the defendants torecover damages allegedly stemming from their negligence.
At his deposition, the plaintiff testified that he slipped and fell from the second stepfrom the top of the stairs as he was walking down the middle of the stairs leading to thebasement apartment of his fiancee's sister while holding his two-year-old son. Thatevening, he had driven his fiancee and the two teenage daughters of his fiancee's sister tothe apartment, and they and his fiancee had preceded him down the stairs withoutincident. The plaintiff testified that the accident occurred when his right foot twisted,causing him to fall down two steps. He testified that there was nothing on the stairs as hebegan to walk down, that he did not see any defects, breaks, or problems with the stairsbefore he descended them, and that he could not ascertain at the time of the accident whyhe fell. Moreover, he testified that, on the three or four occasions when he had previouslyvisited the premises, he never observed any sort of defect with the stairs. The plaintifftestified that two days after the accident occurred, he went back to the premises anddetermined what caused his right foot to twist, when he saw that there was loose cementlocated on the right corner of the fourth step from the top of the stairs. However, he alsotestified that he was unable to correlate the piece of cement with any of the steps leadingto the apartment doorway, and when asked how he was able to determine that the loosecement on the fourth step had come from the second step, he responded that he did notknow.[*2]
The defendants, who both lived upstairs in thebuilding, testified at their depositions that they did not make any repairs to the stairs andwere never informed by the tenants renting the basement apartment in 2008 that the stairsneeded to be repaired.
After the plaintiff filed his note of issue, the defendants moved, in effect, forsummary judgment dismissing the complaint. The Supreme Court denied their motion,and the defendants appeal.
The defendants established their prima facie entitlement to judgment as a matter oflaw by demonstrating that the plaintiff could not identify the cause of his fall (see Califano v Maple Lanes,91 AD3d 896, 897 [2012];McFadden v 726 Liberty Corp., 89 AD3d 1067, 1067 [2011]; Patrick v Costco WholesaleCorp., 77 AD3d 810 [2010]; Blochl v RT Long Is. Franchise, LLC, 70 AD3d 993, 993[2010]; Miller v 7-Eleven,Inc., 70 AD3d 791, 791 [2010]; Bolde v Borgata Hotel Casino & Spa, 70 AD3d 617, 618[2010]; see also Capasso vCapasso, 84 AD3d 997, 998 [2011]). "In a slip-and-fall case, a plaintiff'sinability to identify the cause of the fall is fatal to the action because a finding that thedefendant's negligence, if any, proximately caused the plaintiff's injuries would be basedon speculation" (Capasso v Capasso, 84 AD3d at 998; see Giraldo v Twins AmbuletteServ., Inc., 96 AD3d 903, 903 [2012]; McFadden v 726 Liberty Corp.,89 AD3d at 1068; Alabre vKings Flatland Car Care Ctr., Inc., 84 AD3d 1286, 1287 [2011]; Rajwan v 109-23 OwnersCorp., 82 AD3d 1199, 1200 [2011]; Aguilar v Anthony, 80 AD3d 544, 545 [2011]; Patrickv Costco Wholesale Corp., 77 AD3d at 810-811). Where it is just as likely that someother factor, such as a misstep or a loss of balance, could have caused a slip and fallaccident, any determination by the trier of fact as to causation would be based upon sheerconjecture (see Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d at 1287; Manning v 6638 18th Ave. RealtyCorp., 28 AD3d 434, 435 [2006]).
Here, the defendants established their prima facie entitlement to judgment as a matterof law by submitting, inter alia, a transcript of the plaintiff's deposition testimony, whichdemonstrated that the plaintiff could not identify the cause of his fall without resorting tospeculation (see Califano v Maple Lanes, 91 AD3d at 897; McFadden v 726Liberty Corp., 89 AD3d at 1067; Aguilar v Anthony, 80 AD3d at 545).Although the plaintiff testified that he found loose cement two days after the accident,the evidence in the record did not establish that he could identify this condition as thecause of his slip and fall.
Further, the defendants established, through the plaintiff's deposition testimony andtheir own deposition testimony, that they did not create or have actual or constructivenotice of any alleged defect on the subject stairs (see Sama v Sama, 92 AD3d 862 [2012]; Santiago v C&S WholesaleGrocers Inc., 83 AD3d 814, 814 [2011]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Sama v Sama, 92 AD3d862 [2012]; Califano v Maple Lanes, 91 AD3d at 897; Santiago v C&S WholesaleGrocers Inc., 83 AD3d 814 [2011]; Aguilar v Anthony, 80 AD3d at545). Contrary to the plaintiff's contention, the defendants' argument that he failed toidentify the cause of his fall is properly before this Court, as it was raised before theSupreme Court and the plaintiff had an opportunity to present evidence to refute thisargument (see Whitehead v Cityof New York, 79 AD3d 858, 861 [2010]; Matter of Cohn, 46 AD3d 680, 681 [2007]).
Accordingly, the Supreme Court should have granted the defendants' motion, ineffect, for summary judgment dismissing the complaint. Mastro, J.P., Dickerson, Lottand Austin, JJ., concur.