Opinion
2019–14238 Index No. 715128/17
01-26-2022
Ajia LEEM, respondent, v. 152–24 NORTHERN, LLC, et al., defendants, Dong's Family Cuisine, appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Meredith Drucker Nolen, Nicholas Hurzeler, and Daniel Wang of counsel), for appellant. Burns & Harris, New York, N.Y. (Daniel T. Wright, Jason S. Steinberg, and Judith F. Stempler of counsel), for respondent.
Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Meredith Drucker Nolen, Nicholas Hurzeler, and Daniel Wang of counsel), for appellant.
Burns & Harris, New York, N.Y. (Daniel T. Wright, Jason S. Steinberg, and Judith F. Stempler of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant Dong's Family Cuisine appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 2, 2019. The order denied that branch of the motion of the defendant Dong's Family Cuisine which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
In September 2017, the plaintiff allegedly sustained personal injuries when she tripped atop a mat covering a concrete ramp/slope as she exited a restaurant operated by the defendant Dong's Family Cuisine (hereinafter the defendant). She commenced the instant action against, among others, the defendant. Thereafter, the defendant moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it, contending, inter alia, that the plaintiff did not know what had caused her to fall. The Supreme Court, among other things, denied that branch of the motion. The defendant appeals.
"[A] defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" ( Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 ; see Madden v. 3240 Henry Hudson Parkway, LLC, 192 A.D.3d 1095, 1095–1096, 141 N.Y.S.3d 369 ). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]). "However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation" ( Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 863–864, 5 N.Y.S.3d 302 [internal quotation marks omitted]; see Madden v. 3240 Henry Hudson Parkway, LLC, 192 A.D.3d at 1096, 141 N.Y.S.3d 369 ). "[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" ( Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747 ).
Here, the defendant failed to establish, prima facie, that the plaintiff did not know what had caused her to fall and that there was no dangerous or defective condition that could have caused the plaintiff's fall. In support of its motion, the defendant submitted, inter alia, a transcript of the plaintiff's deposition testimony, which raised a triable issue of fact as to whether the plaintiff tripped and fell on a sloped portion of the sidewalk that was under the mat (see Madden v. 3240 Henry Hudson Parkway, LLC, 192 A.D.3d at 1096, 141 N.Y.S.3d 369 ). Since the defendant failed to meet its initial burden as the movant, the Supreme Court properly denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
The defendant's contention that the defect was trivial and therefore not actionable is raised for the first time on appeal, and thus, is not properly before this Court (see Bonilla v. Southside United Hous. Dev. Fund Corp., 181 A.D.3d 550, 551, 117 N.Y.S.3d 612 ; Salierno v. City of Mount Vernon, 107 A.D.3d 971, 972, 966 N.Y.S.2d 901 ).
RIVERA, J.P., CHAMBERS, FORD and DOWLING, JJ., concur.