Opinion
2014-11765
11-18-2015
Susanne GIANNOTTI, appellant, v. HUDSON VALLEY FEDERAL CREDIT UNION, respondent.
Neimark & Neimark LLP, New City, N.Y. (Ira H. Lapp of counsel), for appellant. Litchfield Cavo LLP, New York, N.Y. (Daniel T. Hughes of counsel), for respondent.
Neimark & Neimark LLP, New City, N.Y. (Ira H. Lapp of counsel), for appellant.
Litchfield Cavo LLP, New York, N.Y. (Daniel T. Hughes of counsel), for respondent.
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 October 8, 2014, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On April 16, 2013, the plaintiff allegedly was injured while walking across the lobby of the defendant's credit union. The plaintiff had been following one of the defendant's employees to the employee's office when she tripped as she was walking over a rug covering a portion of the tile floor. After the plaintiff fell, she noticed that a part of the black rubber edge around the rug was bent upwards. Thereafter, the plaintiff commenced this action against the defendant to recover damages for personal injuries. The defendant subsequently moved for summary judgment dismissing the complaint. The Supreme Court granted the motion.
“In a slip [or trip] and fall case, a defendant moving for summary judgment has the initial burden of establishing, prima facie, that it neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Rogers v. Bloomingdale's, Inc., 117 A.D.3d 933, 934, 985 N.Y.S.2d 731; see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774; Armijos v. Vrettos Realty Corp., 106 A.D.3d 847, 847, 965 N.Y.S.2d 536; Johnson v. Culinary Inst. of Am., 95 A.D.3d 1077, 1078, 944 N.Y.S.2d 307; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598, 869 N.Y.S.2d 222). However, “[a] plaintiff's inability to identify what had caused him or her to fall is fatal to his or her case, and a defendant moving for summary judgment dismissing the complaint can meet its initial burden as the movant simply by demonstrating that the plaintiff did not know what had caused him or her to fall” (Kudrina v. 82–04 Lefferts Tenants Corp., 110 A.D.3d 963, 964, 973 N.Y.S.2d 364; see Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 863–864, 5 N.Y.S.3d 302; Calciano v. Tarragon Corp., 125 A.D.3d 709, 710, 999 N.Y.S.2d 900; Rodriguez v. 1790 Broadway Assoc., LLC, 122 A.D.3d 604, 605, 996 N.Y.S.2d 304).
Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting the transcript of the plaintiff's deposition, during which she testified that she did not notice the subject rug at any time prior to her fall, and that it was only after she fell that she observed a part of the rug to be in a folded condition (see Winder v. Executive Cleaning Services, LLC, 91 A.D.3d 865, 865, 936 N.Y.S.2d 687; Drago v. DeLuccio, 79 A.D.3d 966, 966–967, 913 N.Y.S.2d 747; Penn v. Fleet Bank, 12 A.D.3d 584, 584, 785 N.Y.S.2d 107). The defendant also submitted the deposition testimony and an affidavit from the employee the plaintiff was following when she fell. The employee stated that she did not see any condition with respect to the subject rug which would cause anyone to trip. The defendant also submitted surveillance footage from the day of the plaintiff's fall depicting the rug, which does not show that the rug was in a defective condition prior to the plaintiff falling. Without proof that there was a defective condition present with respect to the subject rug when the plaintiff fell, and the possibility that the folded condition of the rug the plaintiff observed after she fell was caused by her tripping, a jury would be required to impermissibly speculate as to the cause of her fall (see Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 863–864, 5 N.Y.S.3d 302; Dennis v. Lakhani, 102 A.D.3d 651, 652, 958 N.Y.S.2d 170; Winder v. Executive Cleaning Services, LLC, 91 A.D.3d at 866, 936 N.Y.S.2d 687; Drago v. DeLuccio, 79 A.D.3d at 966–967, 913 N.Y.S.2d 747; Penn v. Fleet Bank, 12 A.D.3d at 584, 785 N.Y.S.2d 107). In opposition, the plaintiff failed to raise a triable issue of fact (see Winder v. Executive Cleaning Services, LLC, 91 A.D.3d at 866, 936 N.Y.S.2d 687; Drago v. DeLuccio, 79 A.D.3d at 966–967, 913 N.Y.S.2d 747; Penn v. Fleet Bank, 12 A.D.3d at 584, 785 N.Y.S.2d 107).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.