Theard v. G. Fazio Constr. Co.

12 Citing cases

  1. Cruz v. Flatlands Christian Ctr.

    220 A.D.3d 742 (N.Y. App. Div. 2023)

    The defendants appeal. In a premises liability case, a defendant property owner, or a party in possession or control of real property, 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 injury without engaging in speculation (seeCheprakova v. Medicine Plaza, Inc., 211 A.D.3d 1009, 1010, 178 N.Y.S.3d 712 ; Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 943, 140 N.Y.S.3d 717 ). "Although proximate cause can be established in the absence of direct evidence of causation [and] ... may be inferred from the facts and circumstances underlying the injury, [m]ere speculation as to the cause of a fall, where there can be many causes, is fatal to a cause of action" ( Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435, 814 N.Y.S.2d 178 [internal quotation marks omitted]; seeCheprakova v. Medicine Plaza, Inc., 211 A.D.3d at 1010, 178 N.Y.S.3d 712 ; Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d at 943, 140 N.Y.S.3d 717 ).

  2. Liberty Mut. Ins. Co. v. Norton

    219 A.D.3d 718 (N.Y. App. Div. 2023)   Cited 1 times

    Here, the Town demonstrated, prima facie, that the plaintiff could not establish that the allegedly obstructed stop sign was a proximate cause of the crash without resorting to speculation (seeTheard v. G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 943, 140 N.Y.S.3d 717 ; Lopez v. County of Nassau, 137 A.D.3d 1227, 1228, 27 N.Y.S.3d 389 ). Neither the insured driver nor his passenger had any memory of the collision or the events leading up to it, and therefore, it could not be established whether the insured driver saw or stopped at the stop sign.

  3. Santiago v. Williams

    208 A.D.3d 604 (N.Y. App. Div. 2022)   Cited 4 times

    The plaintiff appeals. "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" ( Nativo v. Dragonetti Bros. Landscaping Nursery & Florist, Inc., 190 A.D.3d 981, 982, 136 N.Y.S.3d 915 ; seeTheard v. G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 943, 140 N.Y.S.3d 717 ; Kerzhner v. New York City Tr. Auth., 170 A.D.3d 982, 96 N.Y.S.3d 298 ). "Indeed, 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" ( Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d at 943, 140 N.Y.S.3d 717 ; seeBrachfield v. Sternlicht, 202 A.D.3d 742, 743, 163 N.Y.S.3d 533 ; Palahnuk v. Tiro Rest. Corp., 116 A.D.3d 748, 983 N.Y.S.2d 603 ).

  4. Halampalakis v. X, LLC

    2021 N.Y. Slip Op. 33461 (N.Y. Sup. Ct. 2021)

    Ash v. City of New York, supra, 109 A.D.3d at 855 (2d Dept. 2013). See, Theardv. G. Fazio Construction Co., Inc., 192 A.D.3d 942 (2d Dept. 2021); Theissen v. 7-Eleven, Inc., 189 A.D.3d 1502, 1503-04 (2d Dept. 2020); Colini v. Stino, Inc., supra; Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 864 (2d Dept. 2015); Goldberg v. Village of Mount Kisco, supra. C. Condition Created / Notice

  5. Tanriverdi v. United Skates of Am.

    221 A.D.3d 630 (N.Y. App. Div. 2023)   Cited 2 times

    Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, inter alia, the transcript of the injured plaintiff's deposition testimony, which demonstrated that she was unable to identify the cause of her fall without resorting to speculation (seeWard v. John T. Mather Mem. Hosp. of Port Jefferson, N.Y., Inc., 215 A.D.3d 994, 187 N.Y.S.3d 328 ; Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 944, 140 N.Y.S.3d 717 ; Rodriguez v. New York City Hous. Auth., 169 A.D.3d 947, 949, 94 N.Y.S.3d 318 ). In opposition, the plaintiffs failed to raise a triable issue of fact.

  6. Ward v. John T. Mather Mem'l Hosp. of Port Jefferson

    215 A.D.3d 994 (N.Y. App. Div. 2023)   Cited 1 times

    An admission note from the decedent's hospital stay in connection with her injuries from the accident stated, inter alia, that the decedent's "[d]aughters state that the [decedent] yesterday went to a thrift shop and when leaving the metal door closed on her hand." Under these circumstances, the defendants established, prima facie, that the plaintiff could not identify the cause of the decedent's injury without engaging in speculation, since the evidence demonstrated that the plaintiff was unable to identify either where on the rear doors to the thrift shop the decedent was injured or what defect, if any, in the rear doors or door frame caused the decedent's injuries (seeTheard v. G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 944, 140 N.Y.S.3d 717 ; Mauskopf v. 1528 Owners Corp., 102 A.D.3d 930, 931, 958 N.Y.S.2d 759 ). In opposition, the plaintiff, who submitted, inter alia, an expert affidavit from a professional engineer, failed to raise a triable issue of fact with respect to the condition of the rear doors to the thrift shop, since the expert's opinion was based on speculation.

  7. Rankin v. Town of N. Hempstead

    213 A.D.3d 711 (N.Y. App. Div. 2023)

    Oliphant contended that the branch fell from a tree located on premises adjacent to her home which were managed by Schmergel. The Supreme Court denied Schmergel's motion for summary judgment dismissing the third-party complaint, and Schmergel appeals. In a premises liability 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 injury without engaging in speculation" ( Mercurio v. Dayton, 207 A.D.3d 456, 457, 169 N.Y.S.3d 532 [alterations and internal quotation marks omitted]; seeTheard v. G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 944, 140 N.Y.S.3d 717 ). Here, Schmergel established its prima facie entitlement to judgment as a matter of law dismissing the third-party complaint by submitting the transcripts of the decedent's and Oliphant's deposition testimony, demonstrating that neither the decedent nor Oliphant could identify from whose property the branch which injured the decedent had originated.

  8. Rankin v. Town of N. Hempstead

    2023 N.Y. Slip Op. 454 (N.Y. App. Div. 2023)

    In a premises liability 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 injury without engaging in speculation" (Mercurio v Dayton, 207 A.D.3d 456, 457 [alterations and internal quotation marks omitted]; see Theard v G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 944).

  9. Cheprakova v. Med. Plaza

    2022 N.Y. Slip Op. 7434 (N.Y. App. Div. 2022)   Cited 3 times

    Here, viewing the evidence in the light most favorable to the plaintiff as the nonmoving party (see Burrus v Douglaston Realty Mgt. Corp., 175 A.D.3d 461), Medicine Plaza established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it through the submission of the transcript of the plaintiff's deposition testimony, which demonstrated that she did not know what caused her to slip and fall (see Mercurio v Dayton, 207 A.D.3d at 456; Theard v G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 944; Gaither-Angus v Adelphi Univ., 180 A.D.3d at 876). In opposition, the plaintiff failed to raise a triable issue of fact.

  10. Jean-Joseph v. Port Auth. of N.Y. & N.J.

    2022 N.Y. Slip Op. 6919 (N.Y. App. Div. 2022)   Cited 1 times

    "'[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'" (Santiago v Williams, 208 A.D.3d 604, 604, quoting Nativo v Dragonetti Bros. Landscaping Nursery & Florist, Inc., 190 A.D.3d 981, 982; see Butts v SJF, LLC, 171 A.D.3d 688, 689). "'Indeed, 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'" (Santiago v Williams, 208 A.D.3d at 604, quoting Theard v G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 943; see Redendo v Central Ave. Chrysler Jeep, Inc., 205 A.D.3d 1060, 1061-1062).