Opinion
No. 2021-04124 Index No. 617420/17
06-29-2022
Kevin Barnett, respondent, v. Tracy Fusco, etc., et al., appellants.
Hollander Legal Group, P.C., Melville, NY (Jennifer B. Ettenger of counsel), for appellants.
Hollander Legal Group, P.C., Melville, NY (Jennifer B. Ettenger of counsel), for appellants.
VALERIE BRATHWAITE NELSON, J.P. REINALDO E. RIVERA CHERYL E. CHAMBERS JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Kathy G. Bergmann, J.), dated May 21, 2021. The order denied the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff allegedly was injured when he slipped and fell while on premises owned by the defendants' decedent, and was assaulted by the defendant Christian Fusco. The plaintiff subsequently commenced this action to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court denied the motion. The defendants appeal.
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 Hughes v Tower Crestwood 2015, LLC, 197 A.D.3d 633, 634; Rivera v J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827). Here, with regard to that branch of their motion which was for summary judgment dismissing the cause of action alleging negligence, the defendants established, prima facie, that the plaintiff could not identify the cause of his alleged fall without engaging in speculation (see Grande v Won Hee Lee, 171 A.D.3d 877, 879; O'Connor v Metro Mgt. Dev., Inc., 130 A.D.3d 698, 699-700; Ash v City of New York, 109 A.D.3d 854, 855-856). The plaintiff testified at his deposition that he did not recall how he slipped or where he slipped. In opposition, the plaintiff failed to raise a triable issue of fact.
The defendants also established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging assault (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). "To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact" (Marilyn S. v Independent Group Home Living Program, Inc., 73 A.D.3d 895, 897 [internal quotation marks omitted]; see Cayruth v City of Mount Vernon, 188 A.D.3d 1139, 1141). Here, the plaintiff testified at his deposition that he could not recall a physical altercation at the premises on the date of the alleged incident and did not "recall being hit." In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.
BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and ZAYAS, JJ., concur.