Opinion
2014-06-20
Judith DIXON and Donald Dixon, Plaintiffs–Appellants, v. SUPERIOR DISCOUNTS AND CUSTOM MUFFLER, by and through its Officers, Agents and/or Employees, Dawn P. JONES, Individually and as an Officer, Agent and/or Employee of Superior Discounts and Custom Muffler, Seneca and Washington, L.L.C., by and through its Officers, Agents and/or Employees, and John Doe Property Management Corporation, by and through its Officers, Agents and/or Employees, Defendants–Respondents.
Bottar Leone PLLC, Syracuse, D.J. & J.A. Cirando, Esqs. (John A. Cirando of Counsel), for Plaintiffs–Appellants. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (John D. Goldman of Counsel), for Defendants–Respondents.
Bottar Leone PLLC, Syracuse, D.J. & J.A. Cirando, Esqs. (John A. Cirando of Counsel), for Plaintiffs–Appellants. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (John D. Goldman of Counsel), for Defendants–Respondents.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, and VALENTINO, JJ.
MEMORANDUM:
Plaintiffs commenced this action seeking damages for injuries sustained by Judith Dixon (plaintiff) when she slipped and fell while leaving defendant Superior Discounts and Custom Muffler, a motor vehicle repair shop operated by defendant Dawn P. Jones. Defendants moved for summary judgment dismissing the complaint on the ground that, inter alia, plaintiff was unable to identify the cause of her fall. Supreme Court granted the motion, and we now reverse.
“In a slip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall” without engaging in speculation ( Altinel v. John's Farms, 113 A.D.3d 709, 709–710, 979 N.Y.S.2d 360;see Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594;Smart v. Zambito, 85 A.D.3d 1721, 1721, 926 N.Y.S.2d 245). Here, we conclude that defendants failed to establish as a matter of law that the cause of plaintiff's fall was speculative ( see Lane v. Texas Roadhouse Holdings, LLC, 96 A.D.3d 1364, 1364–1365, 946 N.Y.S.2d 339;Gafter v. Buffalo Med. Group, P.C., 85 A.D.3d 1605, 1606, 925 N.Y.S.2d 297;Nolan v. Onondaga County, 61 A.D.3d 1431, 1432, 876 N.Y.S.2d 825). “Although [mere] conclusions based upon surmise, conjecture, speculation or assertions are without probative value ..., a case of negligence based wholly on circumstantial evidence may be established if the plaintiffs show[ ] facts and conditions from which the negligence of the defendant[s] and the causation of the accident by that negligence may be reasonably inferred” ( Seelinger v. Town of Middletown, 79 A.D.3d 1227, 1229, 913 N.Y.S.2d 376 [internal quotation marks omitted] ).
Defendants submitted plaintiff's deposition testimony in support of their motion for summary judgment. Although plaintiff was unable to identify the precise cause of her fall, she testified that she fell in the immediate vicinity of an elevation differential in the pavement, “thereby rendering any other potential cause of her fall ‘sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence’ ” ( Nolan, 61 A.D.3d at 1432, 876 N.Y.S.2d 825;see Seelinger, 79 A.D.3d at 1230, 913 N.Y.S.2d 376). Inasmuch as defendants failed to meet their initial burden on the motion, we need not consider the sufficiency of plaintiffs'opposing papers ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
Finally, we agree with the court that there are issues of fact with respect to the existence of a dangerous condition and whether the three-inch defect is trivial in nature.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.