Opinion
01-18-2017
Selma HOOVIS, appellant, v. GRAND CITY 99 CENTS STORE, INC., respondent.
The Noll Law Firm, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen ], of counsel), for appellant. McAndrew Conboy & Prisco LLP, Melville, NY (Michael J. Prisco of counsel), for respondent.
The Noll Law Firm, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen ], of counsel), for appellant.
McAndrew Conboy & Prisco LLP, Melville, NY (Michael J. Prisco of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and FRANCESCA E. CONNOLLY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Sher, J.), entered March 7, 2016, which, inter alia, granted the defendant's motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.
In a trip-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 (see Viviano v. KeyCorp, 128 A.D.3d 811, 9 N.Y.S.3d 154 ; Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 814 N.Y.S.2d 178 ). 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 Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747 ; Kudrina v. 82–04 Lefferts Tenants Corp., 110 A.D.3d 963, 964, 973 N.Y.S.2d 364 ; Dennis v. Lakhani, 102 A.D.3d 651, 652, 958 N.Y.S.2d 170 ). "That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall. Rather, it means only that a plaintiff's inability to establish the cause of his or fall—whether by personal knowledge or by other admissible proof—is fatal to a cause of action based on negligence" (Izaguirre v. New York City Tr. Auth., 106 A.D.3d 878, 878, 966 N.Y.S.2d 122 ; see McRae v. Venuto, 136 A.D.3d 765, 766, 24 N.Y.S.3d 745 ).
Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing, through the submission of the deposition testimony of the plaintiff and a witness to the accident, that the plaintiff could not identify the cause of her fall without engaging in speculation (see Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d at 827, 995 N.Y.S.2d 747 ; Ash v. City of New York, 109 A.D.3d 854, 856, 972 N.Y.S.2d 594 ; Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d at 435, 814 N.Y.S.2d 178 ). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
In light of our determination, it is not necessary to reach the parties' remaining contentions.