Napoli Shkolnik PLLC (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Beth S. Gereg and Brian J. Isaac], of counsel), for appellants.
Fern Flomenhaft PLLC, New York, N.Y. (Nicole Baffi of counsel), for respondent.
Opinion
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Martin, J.), dated October 6, 2014, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff Neil Davis (hereinafter the injured plaintiff) allegedly was injured when he tripped and fell on a staircase in a building owned by the defendant. The injured plaintiff, and his wife suing derivatively, commenced this action to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, arguing, among other things, that the injured plaintiff could not identify the cause of his fall. The Supreme Court granted the motion, and the plaintiffs appeal.
In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall (see Gotay v. New York City Hous. Auth., 127 A.D.3d 693, 694, 7 N.Y.S.3d 311; Buglione v. Spagnoletti, 123 A.D.3d 867, 999 N.Y.S.2d 453). A plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation (see
Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747; Kudrina v. 82–04 Lefferts Tenants Corp., 110 A.D.3d 963, 964, 973 N.Y.S.2d 364; Dennis v. Lakhani, 102 A.D.3d 651, 652, 958 N.Y.S.2d 170). Here, viewing the evidence in the light most favorable to the plaintiffs, as the nonmoving parties, the defendant failed to establish, prima facie, that the injured plaintiff did not know what had caused him to fall. The deposition testimony of the injured plaintiff and his wife, who witnessed the accident, which were submitted in support of the motion, demonstrated the existence of a triable issue of fact as to whether the injured plaintiff tripped and fell as a result of an uneven condition on the second floor landing of the defendant's interior staircase (see Gotay v. New York City Hous. Auth., 127 A.D.3d at 694–695, 7 N.Y.S.3d 311; Lamour v. Decimus, 118 A.D.3d 851, 851–852, 988 N.Y.S.2d 235; Jackson v. Fenton, 38 A.D.3d 495, 495–496, 831 N.Y.S.2d 260). Accordingly, the defendant failed to make a prima facie showing of her entitlement to summary judgment on this ground.
To impose liability upon a defendant for a plaintiff's injuries, there must be evidence showing the existence of a dangerous
or defective condition, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time (see Maloney v. Farris, 117 A.D.3d 916, 985 N.Y.S.2d 882; Morrison v. Apostolic Faith Mission of Portland, Or., 111 A.D.3d 684, 974 N.Y.S.2d 568; Kudrina v. 82–04 Lefferts Tenants Corp., 110 A.D.3d at 964, 973 N.Y.S.2d 364; Winder v. Executive Cleaning Servs., LLC, 91 A.D.3d 865, 936 N.Y.S.2d 687; Arzola v. Boston Props., Ltd. Partnership, 63 A.D.3d 655, 656, 880 N.Y.S.2d 352). Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the circumstances of each case, and is generally a question of fact for the jury (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489). The defendant failed to establish, prima facie, that the subject staircase was not in a defective condition and that she did not create the alleged hazardous condition or have actual or constructive notice of such condition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Maloney v. Farris, 117 A.D.3d 916, 985 N.Y.S.2d 882). Since the defendant failed to meet her burden as the movant, it is not necessary to review the sufficiency of the plaintiffs' opposition papers.
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.