| Viviano v KeyCorp |
| 2015 NY Slip Op 04121 [128 AD3d 811] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| Rose Viviano, Appellant, v KeyCorp, DoingBusiness as KeyBank, Respondent. |
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y.(Marcia K. Raicus of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Orange County (Slobod, J.), dated June 3, 2013, whichgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
A plaintiff's inability to identify the cause of her fall is fatal to a cause of action torecover damages for personal injuries because a finding that the defendant's negligence,if any, proximately caused the plaintiff's injuries would be based on speculation (see Ash v City of New York,109 AD3d 854, 855 [2013]; Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d 1286[2011]; Rajwan v 109-23Owners Corp., 82 AD3d 1199, 1200 [2011]). Proximate cause may beestablished without direct evidence of causation by inference from the circumstances ofthe accident. However, mere speculation as to the cause of an accident, when there couldhave been many possible causes, is fatal to a cause of action (see Louman v Town ofGreenburgh, 60 AD3d 915, 916 [2009]; Costantino v Webel, 57 AD3d 472, 472 [2008]; Manning v 6638 18th Ave. RealtyCorp., 28 AD3d 434 [2006]).
Here, the defendant established its prima facie entitlement to judgment as a matter oflaw by submitting, inter alia, the plaintiff's deposition testimony, which demonstratedthat the plaintiff did not know what had caused her to fall (see Ash v City of New York,109 AD3d 854 [2013]; Patrick v Costco Wholesale Corp., 77 AD3d 810 [2010];Louman v Town ofGreenburgh, 60 AD3d 915 [2009]; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434[2006]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triableissue of fact. The plaintiff's affidavit, in which she identified the cause of the accident asthe uneven and worn loose asphalt of the defendant's driveway, presented what appearsto be feigned issues of fact designed to avoid the consequences of her earlier depositiontestimony, and was insufficient to defeat the defendant's motion (see Hunt v Meyers, 63 AD3d685 [2009]; Wright v South Nassau Communities Hosp., 254 AD2d 277[1998]). In light of our determination, it is not necessary to address the merits of theparties' remaining contentions.
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint. Skelos, J.P., Dillon, Austin andHinds-Radix, JJ., concur.