Opinion
2016–11974 Index No. 5769/13
03-21-2018
Gary GANI, appellant, v. AVENUE R SEPHARDIC CONGREGATION, respondent.
Michael N. David, New York, NY, for appellant. Molod Spitz & DeSantis, P.C., New York, N.Y. (Marcy Sonneborn and Salvatore J. DeSantis of counsel), for respondent.
Michael N. David, New York, NY, for appellant.
Molod Spitz & DeSantis, P.C., New York, N.Y. (Marcy Sonneborn and Salvatore J. DeSantis of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDERAppeal from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated October 14, 2016. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On January 27, 2013, at approximately 9:00 a.m., the plaintiff allegedly fell down an interior staircase in the defendant's synagogue. The plaintiff commenced this negligence action against the defendant alleging personal injuries. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff was unable to identify the cause of his fall. The Supreme Court granted the motion. The plaintiff appeals.
A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition (see Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255 ; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; Kyte v. Mid–Hudson Wendico, 131 A.D.3d 452, 15 N.Y.S.3d 147 ). "In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" ( Steed v. MVA Enters., LLC, 136 A.D.3d 793, 794, 26 N.Y.S.3d 98 [internal quotation marks omitted] ). Thus, in a premises liability case, a defendant real property owner, or a party in possession or control of real property, who moves for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Kyte v. Mid–Hudson Wendico, 131 A.D.3d at 453, 15 N.Y.S.3d 147 ; Pampalone v. FBE Van Dam, LLC, 123 A.D.3d 988, 989, 1 N.Y.S.3d 155 ). A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ).
A defendant can also establish its prima facie entitlement to judgment as a matter of law in a premises liability case by showing that the plaintiff cannot identify the cause of his or her accident (see McRae v. Venuto, 136 A.D.3d 765, 766, 24 N.Y.S.3d 745 ; Montemarano v. Sodexo, Inc., 121 A.D.3d 1059, 1060, 995 N.Y.S.2d 207 ; Izaguirre v. New York City Tr. Auth., 106 A.D.3d 878, 878, 966 N.Y.S.2d 122 ). A plaintiff's inability in a premises liability case 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 Palahnuk v. Tiro Rest. Corp., 116 A.D.3d 748, 983 N.Y.S.2d 603 ; DeForte v. Greenwood Cemetery, 114 A.D.3d 718, 980 N.Y.S.2d 499 ; Deputron v. A & J Tours, Inc., 106 A.D.3d 944, 945, 964 N.Y.S.2d 670 ).
Here, based on the deposition testimony of the plaintiff, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of his fall (see Priola v. Herrill Bowling Corp., 150 A.D.3d 1163, 1164, 52 N.Y.S.3d 635 ; Califano v. Maple Lanes, 91 A.D.3d 896, 897–898, 938 N.Y.S.2d 140 ; McFadden v. 726 Liberty Corp., 89 A.D.3d 1067, 1068, 933 N.Y.S.2d 617 ; Capasso v. Capasso, 84 A.D.3d 997, 998, 923 N.Y.S.2d 199 ; Patrick v. Costco Wholesale Corp., 77 A.D.3d 810, 811, 909 N.Y.S.2d 543 ). Furthermore, the defendant also established, prima facie, that it did not create a dangerous or defective condition with respect to the subject staircase, and did not have actual or constructive notice of the condition claimed by the plaintiff for a sufficient length of time to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d at 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ). In opposition, the plaintiff failed to raise a triable issue of fact as to either the cause of the accident or whether the defendant created or had notice of any dangerous or defective condition with respect to the subject staircase (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
In light of our determination, the defendant's remaining contention need not be addressed.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.