| Ash v City of New York |
| 2013 NY Slip Op 05864 [109 AD3d 854] |
| September 18, 2013 |
| Appellate Division, Second Department |
| Rita Ash, Respondent, v City of New York,Defendant, and Trump Village Section 3, Inc., Appellant. |
—[*1] Marder, Eskesen & Nass, New York, N.Y. (Frank N. Eskesen of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Trump VillageSection 3, Inc., appeals, as limited by its notice of appeal and brief, from so much of anorder of the Supreme Court, Kings County (Pfau, J.), dated January 17, 2013, as deniedthat branch of its cross motion which was for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the cross motion of the defendant Trump Village Section 3, Inc.,which was for summary judgment dismissing the complaint insofar as asserted against itis granted.
While walking on a public sidewalk abutting property owned by the defendantTrump Village Section 3, Inc. (hereinafter Trump Village), the plaintiff allegedlysustained injuries as a result of tripping and falling in front of a bus stop shelter where acrowd of people was waiting for a bus. The plaintiff commenced this action to recoverdamages for personal injuries against the City of New York and Trump Village. In herbills of particulars, the plaintiff alleged that she tripped over a tuft of grass growing outof an expansion joint between the sidewalk flag and the adjacent curbstone. The City'smotion for summary judgment dismissing the complaint insofar as asserted against it wasgranted by a prior order of the Supreme Court. Trump Village cross-moved, inter alia, forsummary judgment dismissing the complaint insofar as asserted against it, and theSupreme Court denied Trump Village's cross motion.
Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has theburden of establishing that it did not create the hazardous condition that allegedly causedthe fall, and did not have actual or constructive notice of that condition for a sufficientlength of time to discover and remedy it (see Mei Xiao Guo v Quong Big Realty Corp., 81 AD3d610, 610-611 [2011]; Melnikov v 249 Brighton Corp., 72 AD3d 760 [2010]).However, a defendant can make its prima facie showing of entitlement to judgment as amatter of law by establishing that the plaintiff cannot [*2]identify the cause of his or her fall without engaging inspeculation (see McFadden v726 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]).
" '[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of actionbecause a finding that the defendant's negligence, if any, proximately caused theplaintiff's injuries would be based on speculation' " (Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d1286, 1287 [2011], quoting Rajwan v 109-23 Owners Corp., 82 AD3d 1199, 1200[2011] [some internal quotation marks omitted]; see Aguilar v Anthony, 80 AD3d 544, 545 [2011]).Although "[p]roximate cause may be established without direct evidence of causation, byinference from the circumstances of the accident, . . . mere speculation as tothe cause of an accident, when there could have been many possible causes, is fatal to acause of action" (Costantino vWebel, 57 AD3d 472, 472 [2008]; see Louman v Town of Greenburgh, 60 AD3d 915, 916[2009]). Where it is just as likely that some other factor, such as a misstep or a loss ofbalance, could have caused a trip and fall accident, any determination by the trier of factas to causation would be based upon sheer speculation (see Alabre v Kings FlatlandCar Care Ctr., Inc., 84 AD3d at 1287; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434,435 [2006]).
Here, Trump Village demonstrated its prima facie entitlement to judgment as amatter of law by establishing, through the submission of the plaintiff's testimony at thehearing held pursuant to General Municipal Law § 50-h (hereinafter the 50-hhearing) and her deposition, that the plaintiff could not identify the cause of her fallwithout engaging in speculation (see Louman v Town of Greenburgh, 60 AD3dat 916). During her 50-h hearing and deposition, the plaintiff testified that she did not seethe tuft of grass prior to falling and did not know why she fell, and it was the ambulancepersonnel who posited that the subject tuft of grass caused her fall. However, since theambulance personnel did not witness the accident, their opinion as to what caused the fallwas mere speculation. In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court improperly denied that branch of Trump Village'scross motion which was for summary judgment dismissing the complaint insofar asasserted against it.
In light of our determination, we need not address Trump Village's remainingcontention. Rivera, J.P., Skelos, Chambers and Austin, JJ., concur.