| Rivera v J. Nazzaro Partnership, L.P. |
| 2014 NY Slip Op 08001 [122 AD3d 826] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| Milagros Rivera, Appellant, v J. NazzaroPartnership, L.P., Respondent, et al., Defendant. |
Cohen & Jaffe, LLP, Lake Success, N.Y. (Thomas J. Cicillini of counsel), forappellant.
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C.,Syosset, N.Y. (Anton Piotroski of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Suffolk County (Asher, J.), dated April 2, 2014, whichgranted the motion of the defendant J. Nazzaro Partnership, L.P., for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
On July 20, 2011, the plaintiff tripped and fell while walking on an exterior walkwaylocated at 30 Main Street, Bayshore, allegedly sustaining injuries. Thereafter, the plaintiffcommenced this action against the defendant J. Nazzaro Partnership, L.P. (hereinafter thedefendant), the owner of the property, and another party, to recover damages for personalinjuries. The defendant moved for summary judgment dismissing the complaint insofaras asserted against it. The Supreme Court granted the motion.
In a trip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal tothe cause of action, because a finding that the defendant's negligence, if any, proximatelycaused the plaintiff's injuries would be based on speculation (see Kudrina v 82-04 LeffertsTenants Corp., 110 AD3d 963, 964 [2013]; Dennis v Lakhani, 102 AD3d 651, 652 [2013]; Califano v Maple Lanes, 91AD3d 896, 897 [2012]; Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d1286, 1287 [2011]). Here, the defendant established its entitlement to judgment as amatter of law by submitting the deposition testimony of the plaintiff, in which sheadmitted to not knowing what her foot had been caught on, or what caused her to fall.Notably, the plaintiff testified that, as she exited a pharmacy, she walked straight, lookingforward, and did not look down (see Kaplan v Great Neck Donuts, Inc., 68 AD3d 931, 932[2009]; Louman v Town ofGreenburgh, 60 AD3d 915, 916 [2009]).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff'saffidavit submitted in opposition to the motion merely raised a feigned issue of factdesigned to avoid the consequences of her earlier deposition testimony (see Steinsvaag v City of NewYork, 96 AD3d 932, 933 [2012]; Capasso v Capasso, 84 AD3d 997, 998 [2011]; Bolde v Borgata Hotel Casino& Spa, 70 AD3d 617, 618 [2010]; Kaplan v Great Neck Donuts,Inc., 68 AD3d at 932). The deposition testimony of [*2]the plaintiff's friend, who was present when the accidentoccurred, also failed to raise a triable issue of fact, as this witness was unable to identifywhat caused the plaintiff to fall. The plaintiff also submitted an affidavit of an expertwho alleged that the proximate cause of the plaintiff's injuries was a depression of thewalkway pavers, which created a one-inch height difference between the pavers and theabutting concrete curb, thereby causing a tripping hazard. However, since the plaintiffdid not know what caused her to fall, it would be speculative to assume that this allegedcondition proximately caused her fall (see Humphrey v Merivil, 109 AD3d 792, 793 [2013];Kaplan v Great Neck Donuts, Inc., 68 AD3d at 932; Costantino v Webel, 57 AD3d472, 472-473 [2008]).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint. Skelos, J.P., Austin, Sgroi and LaSalle, JJ.,concur. [Prior Case History: 2014 NY Slip Op 31012(U).]