Opinion
2019–00526 Index No. 2217/16
07-15-2020
Barbara VON EUW, Appellant, v. FRISCO, LLC, et al., Respondents.
Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz of counsel), for appellant. Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Lawrence Lambert and Todd Weisman of counsel), for respondents.
Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz of counsel), for appellant.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Lawrence Lambert and Todd Weisman of counsel), for respondents.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered November 27, 2018. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On the evening of January 2, 2014, the plaintiff allegedly slipped and fell inside a restaurant in Nassau County. The restaurant was operated by the defendant Jackson Roadhouse, LLC, which leased the premises from the defendant Frisco, LLC. The plaintiff subsequently commenced this personal injury action against the defendants. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the defendants' motion, and the plaintiff appeals.
A defendant moving for summary judgment dismissing a complaint in a slip-and-fall action can meet its initial burden as the movant by demonstrating that the plaintiff did not know what caused him or her to fall (see Defino v. Interlaken Owners, Inc., 125 A.D.3d 717, 4 N.Y.S.3d 89 ; Kudrina v 82–04 Lefferts Tenants Corp., 110 A.D.3d 963, 973 N.Y.S.2d 364 ). 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 Rodriguez v. New York Hous. Auth., 169 A.D.3d 947, 948–949, 94 N.Y.S.3d 318 ; DiLorenzo v. S.I.J. Realty Co., LLC, 115 A.D.3d 701, 702, 981 N.Y.S.2d 590 ; Louman v. Town of Greenburgh, 60 A.D.3d 915, 916, 876 N.Y.S.2d 112 ).
In support of their motion, the defendants submitted, inter alia, a transcript of the plaintiff's deposition testimony, which demonstrated that the plaintiff could not identify the cause of her fall without engaging in speculation (see Goldberg v. Village of Mount Kisco, 125 A.D.3d 929, 930, 5 N.Y.S.3d 149 ; McFadden v. 726 Liberty Corp., 89 A.D.3d 1067, 1068, 933 N.Y.S.2d 617 ; Blochl v. RT Long Is. Franchise, LLC, 70 A.D.3d 993, 895 N.Y.S.2d 511 ). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion for summary judgment dismissing the complaint.
BALKIN, J.P., LEVENTHAL, MALTESE and IANNACCI, JJ., concur.