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.
PETER B. SKELOS, J.P., MARK C. DILLON, LEONARD B. AUSTIN, and SYLVIA O. HINDS–RADIX, JJ.
Opinion
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated June 3, 2013, which granted 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 to recover 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 A.D.3d 854, 855, 972 N.Y.S.2d 594 ; Alabre v. Kings Flatland Car Care Ctr., Inc., 84 A.D.3d 1286, 924 N.Y.S.2d 174 ; Rajwan v. 109–23 Owners Corp., 82 A.D.3d 1199, 1200, 919 N.Y.S.2d 385 ). Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. However, mere speculation as to the cause of an accident, when there could have been many possible
causes, is fatal to a cause of action (see Louman v. Town of Greenburgh, 60 A.D.3d 915, 916, 876 N.Y.S.2d 112 ; Costantino v. Webel, 57 A.D.3d 472, 472, 869 N.Y.S.2d 179 ; Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 814 N.Y.S.2d 178 ).
Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony, which demonstrated that the plaintiff did not know what had caused her to fall (see Ash v. City of New York, 109 A.D.3d 854, 972 N.Y.S.2d 594 ; Patrick v. Costco Wholesale Corp., 77 A.D.3d 810, 909 N.Y.S.2d 543 ; Louman v. Town of Greenburgh, 60 A.D.3d 915, 876 N.Y.S.2d 112 ; Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 814 N.Y.S.2d 178 ). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. The plaintiff's affidavit, in which she identified the cause of the accident as the uneven and worn loose asphalt of the defendant's driveway, presented what appears to be feigned issues of fact designed to avoid the consequences of her earlier deposition testimony, and was insufficient to defeat the defendant's motion (see Hunt v. Meyers, 63 A.D.3d 685, 879 N.Y.S.2d 725 ; Wright
v. South Nassau Communities Hosp., 254 A.D.2d 277, 678 N.Y.S.2d 636 ). In light of our determination, it is not necessary to address the merits of the parties' remaining contentions.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.