Opinion
No. 2020-07274 Index No. 705927/18
05-08-2024
William T. Lucas, etc., appellant, v. Genting New York, LLC, etc., respondent, et al., defendant.
Jacobs P.C., Kew Gardens, NY (Eduard Kushmakov of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Antony Lembersky of counsel), for respondent.
Jacobs P.C., Kew Gardens, NY (Eduard Kushmakov of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Antony Lembersky of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, LARA J. GENOVESI, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered August 14, 2020. The order, insofar as appealed from, granted the motion of the defendant Genting New York, LLC, for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On the evening of November 15, 2017, Alice Lucas (hereinafter the decedent) allegedly fell on an exterior walkway within the property of the defendant Genting New York, LLC (hereinafter Genting). The decedent commenced this action against Genting and another defendant. Genting moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that the decedent was unable to identify the cause of her fall. The Supreme Court, inter alia, granted Genting's motion. During the pendency of the appeal, the decedent died, and William T. Lucas, as executor of her estate, was substituted as the plaintiff.
In a trip-and-fall or 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 Grande v Won Hee Lee, 171 A.D.3d 877, 878; Kerzhner v New York City Tr. Auth., 170 A.D.3d 982, 983; Ash v City of New York, 109 A.D.3d 854, 855). Here, Genting established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of the decedent's fall without engaging in speculation (see Mitgang v PJ Venture HG, LLC, 126 A.D.3d 863, 864; Rivera v J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827). At her deposition, the decedent testified that she did not know whether she slipped or tripped and that she did not know what had caused her to fall.
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's contention that the area at issue was not properly illuminated failed to raise a triable issue of fact since the plaintiff did not assert that the alleged inadequate lighting condition was the proximate cause of the decedent's fall (see Bishop v Marsh, 59 A.D.3d 483; Wright v South Nassau Communities Hosp., 254 A.D.2d 277, 278). Additionally, it would be speculative to conclude that any of the alleged building code violations or dangerous conditions set forth in the affidavit of the plaintiff's expert, even if fully credited, were a proximate cause of the decedent's fall (see Miranda v Leone Realty, Inc., 179 A.D.3d 1052, 1053; Burns v Linden St. Realty, LLC, 165 A.D.3d 876, 877; Thompson v Commack Multiplex Cinemas, 83 A.D.3d 929, 930; Reiff v Beechwood Browns Rd. Bldg. Corp., 54 A.D.3d 1015; Plowden v Stevens Partners, LLC, 45 A.D.3d 659, 660-661).
Accordingly, the Supreme Court properly granted Genting's motion for summary judgment dismissing the complaint insofar as asserted against it.
BARROS, J.P., CHAMBERS, GENOVESI and VENTURA, JJ., concur.