Opinion
Index No. 52784/2016
11-01-2018
SHELLY CROSHIER, Plaintiff, v. NEW HORIZONS RESOURCES, INC., Defendant.
Mark A. Campbell, Esq. Eric J. Koplowitz, Esq. Hardin, Kundla, McKeon & Polelto, P.A.
Unpublished Opinion
Mark A. Campbell, Esq.
Eric J. Koplowitz, Esq.
Hardin, Kundla, McKeon & Polelto, P.A.
DECISION AND ORDER
Edward T. McLoughlin, Judge
The following papers were considered in connection with defendant's motion for summary judgment seeking to dismiss the complaint:
Defendant's motion, affirmation /accompanying exhibits 15-27
Plaintiffs affirmation in opposition /accompanying exhibits 32-37
Reply affirmation 39
On November 19, 2013, the plaintiff tripped and fell while in the driveway of New Horizon Resources, Inc., located at 20 Thornwood Drive, Poughkeepsie, New York. Plaintiff sustained injuries as a result of her fall and commenced the instant action on November 18, 2016.
Defendant has now moved for summary judgment seeking dismissal of the action. Defendant claims that there arc no triable issues, as no defective condition existed that the landlord affirmatively created or had actual or constructive notice of its existence. Further, defendant claims that summary judgment should be granted because the plaintiff cannot identify the cause of her fall without engaging in speculation. The plaintiff opposes the summary judgment application.
It is axiomatic that summary judgment is a drastic remedy and should not be granted where triable issues of fact are raised and cannot be resolved on conflicting affidavits. See Vega v. Restani Construction Corp.. 18 N.Y.3d 499; Millerton Agwav Co-Op v. Briarcliff Farms. Inc., 17 NY2nd 57. It is not the Court's function to determine credibility. See Chimbo v. Bolivar, 142 A.D.3d 944 (2nd Dept. 2016). Issue finding, rather than issue determination, is the key to the procedure. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395.
Initially, the proponent must make -a prima facie showing of entitlement to summary judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact. However, once the movant makes such a sufficient showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Alvarez v. Prospect Hospital, 68 N.Y.2d 320. hi making this determination, the Court must view the evidence in a light most favorable to the opposing party and must give that party the benefit of every inference which can be drawn from the evidence. Nash v. Port Washington Union Free School District, 83 A.D.3d 136 (2nd Dept. 2011).
It is well settled that a land owner or tenant in possession of the premises must act reasonably in maintaining the premises in question in a safe condition in view of all the circumstances. Basso v. Miller, 40 N.Y.2d 233.
However, summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous. Lczama v. 34-15 Parsons Boulevard. LLC, 16 A.D.3d 560 (2nd Dept. 2005). This is especially so when the plaintiff cannot identify the cause of her fall without engaging in speculation. Mitgang v. PJ Venture HG. LLC, 126 A.D.3d 863 (2nd Dept. 2015).
Where a plaintiff cannot identify the cause of her fall without engaging in speculation, a defendant may make a prima facie showing of entitlement to summary judgment as a matter of law. Touloupis v. Sear. Roebuck & Company, 155 A.D.3d 807 (2nd Dept. 2017).
A plaintiffs 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 plaintiffs injury, would be based on speculation. Amster v. Kromcr, 150 A.D.3d 804 (2nd Dept. 2017).
Here, the defendants have established their prima facie entitlement to judgment as a matter of law by submitting evidence, including, but not limited to, a transcript of the plaintiffs deposition testimony, which demonstrates that the plaintiff can merely speculate as to the reason for her fall. Blocker v. Filene's Basement #51-00540 , 126 A.D.3d 744 (2nd Dept. 205); Bryant v. Loft Book Store Cafe. LLC, 138 A.D.3d 664 (2nd Dept. 2016).
Accordingly, it is hereby
ORDERED that the defendant's motion for summary judgment dismissing the complaint is granted.
The foregoing constitutes the decision and order of the Court.