Opinion
2014-08-27
Janis CIPRIANO, appellant, v. CITY OF NEW YORK, et al., respondents.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Kathy Chang Park of counsel), for respondents City of New York, New York City Department of Transportation, and New York City Department of Sanitation.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Kathy Chang Park of counsel), for respondents City of New York, New York City Department of Transportation, and New York City Department of Sanitation.
Baron Law Firm, PLLC, East Northport, N.Y. (John Sordi of counsel), for respondents Courthouse Municipal Garage–Parking Systems and Parking Systems Plus, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Aliotta, J.), entered July 16, 2013, which granted the motion of the defendants Courthouse Municipal Garage–Parking Systems and Parking Systems Plus, Inc., and the cross motion of the defendants City of New York, New York City Department of Transportation, and New York City Department of Sanitation, for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is reversed, on the law, with one bill of costs, and the motion and cross motion are denied.
The plaintiff allegedly was injured when she slipped and fell when leaving a parking garage on Staten Island. Before the completion of discovery, the defendants Courthouse Municipal Garage–Parking Systems and Parking Systems Plus, Inc. (hereinafter together the parking defendants), moved, and the defendants City of New York, New York City Department of Transportation, and New York City Department of Sanitation (hereinafter collectively the City defendants) cross-moved, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted the motion and cross motion. The plaintiff appeals.
In a slip 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 Altinel v. John's Farms, 113 A.D.3d 709, 979 N.Y.S.2d 360; Antelope v. Saint Aidan's Church, Inc., 110 A.D.3d 1020, 973 N.Y.S.2d 769; Izaguirre v. New York City Tr. Auth., 106 A.D.3d 878, 966 N.Y.S.2d 122). If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based upon speculation ( see Patrick v. Costco Wholesale Corp., 77 A.D.3d 810, 909 N.Y.S.2d 543; Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 478, 735 N.Y.S.2d 585). “That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall. Rather, it means only that a plaintiff's inability to establish the cause of his or [her] fall—whether by personal knowledge or by other admissible proof—is fatal to a cause of action based on negligence” (Izaguirre v. New York City Tr. Auth., 106 A.D.3d at 878, 966 N.Y.S.2d 122; see Morgan v. Windham Realty, LLC, 68 A.D.3d 828, 829, 890 N.Y.S.2d 621; cf. Stock v. Otis El. Co., 52 A.D.3d 816, 817, 861 N.Y.S.2d 722; Stanojevic v. Scotto Bros. Rest. Enters., Inc., 16 A.D.3d 575, 576, 792 N.Y.S.2d 147).
Here, the defendants failed to establish, prima facie, that the plaintiff could not identify the cause of her fall. In support of the motion and cross motion, the defendants primarily relied upon the transcript of the plaintiff's hearing testimony pursuant to General Municipal Law § 50–h. This transcript failed to eliminate triable issues of fact as to whether the plaintiff could establish the cause of her fall, as she testified that there was ice at the location of her fall ( see Altinel v. John's Farms, 113 A.D.3d at 710, 979 N.Y.S.2d 360; Bernardo v. 444 Rte. 111, LLC., 83 A.D.3d 753, 754, 921 N.Y.S.2d 274; Boyd v. Rome Realty Leasing Ltd., Partnership, 21 A.D.3d 920, 921, 801 N.Y.S.2d 340). Since the defendants failed to meet their initial burden, we need not consider the sufficiency of the plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).
Accordingly, the Supreme Court should have denied the motion of the parking defendants and the cross motion of the City defendants for summary judgment dismissing the complaint insofar as asserted against each of them.
BALKIN, J.P., LEVENTHAL, MALTESE and LaSALLE, JJ., concur.