Opinion
2015-08372, Index No. 20023/12.
10-25-2017
Kathy CROSS, appellant, v. FRIENDSHIP RESTAURANT GROUP, LLC, doing business as Valentino's on the Green, respondent.
Edelstein & Grossman, New York, NY (Jonathan I. Edelstein of counsel), for appellant. Lewis Brisbois Bisgaard & Smith, New York, NY (Nicholas P. Hurzeler and Meredith Drucker Nolen of counsel), for respondent.
Edelstein & Grossman, New York, NY (Jonathan I. Edelstein of counsel), for appellant.
Lewis Brisbois Bisgaard & Smith, New York, NY (Nicholas P. Hurzeler and Meredith Drucker Nolen of counsel), for respondent.
Appeal from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered June 23, 2015. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured when she slipped and fell in the defendant restaurant. The plaintiff could not identify the cause of her fall, but stated, at her deposition, that it "could have been grease from the kitchen." The plaintiff commenced this action to recover damages for personal injuries. Following joinder of issue and the completion of discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.
In a slip-and-fall case, 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 Priola v. Herrill Bowling Corp., 150 A.D.3d 1163, 1164, 52 N.Y.S.3d 635 ; Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 ; Patrick v. Costco Wholesale Corp., 77 A.D.3d 810, 810, 909 N.Y.S.2d 543 ; Louman v. Town of Greenburgh, 60 A.D.3d 915, 916, 876 N.Y.S.2d 112 ). Here, the defendant established its prima facie entitlement to summary judgment by demonstrating that the plaintiff could not identify the cause of her fall (see Trapani v. Yonkers Racing Corp., 124 A.D.3d 628, 629, 1 N.Y.S.3d 299 ; Patrick v. Costco Wholesale Corp., 77 A.D.3d at 811, 909 N.Y.S.2d 543 ; Scott v. Rochdale Vil., Inc., 65 A.D.3d 621, 883 N.Y.S.2d 726 ; Constantino v. Webel, 57 A.D.3d 472, 869 N.Y.S.2d 179 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Patrick v. Costco Wholesale Corp., 77 A.D.3d at 811, 909 N.Y.S.2d 543 ; Hartman v. Mountain Val. Brew Pub, 301 A.D.2d 570, 571, 754 N.Y.S.2d 31 ). Accordingly, the defendant's motion for summary judgment dismissing the complaint was properly granted.
In light of our determination, we need not reach the plaintiff's remaining contentions.
RIVERA, J.P., HALL, ROMAN and CHRISTOPHER, JJ., concur.