Opinion
2019-06940 Index No. 63403/16
03-31-2021
Eileen MADDEN, appellant, v. 3240 HENRY HUDSON PARKWAY, LLC, respondent.
Jones, LLP, Scarsdale, N.Y. (Jeffrey Briem of counsel), for appellant.
Jones, LLP, Scarsdale, N.Y. (Jeffrey Briem of counsel), for appellant.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated April 24, 2019. The order granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the complaint is denied.
On December 26, 2015, at 6:30 or 7:30 a.m., the plaintiff allegedly tripped and fell in the lobby of the defendant's building. At the time of the accident, there was a rectangular, white depressed area in the lobby that was not flush with the surrounding floor. The plaintiff commenced this personal injury action against the defendant. Subsequently, the defendant moved, inter alia, for summary judgment dismissing the complaint on the ground that the plaintiff did not know what had caused her to fall. The Supreme Court granted that branch of the defendant's motion, and the plaintiff 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 Kozik v. Sherland & Farrington, Inc., 173 A.D.3d 994, 995, 103 N.Y.S.3d 128 ). "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 Flanagan v. Town of Huntington, 155 A.D.3d 1000, 1001, 64 N.Y.S.3d 590 ). "[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 ; see Mitgang v. PJ Venture HG, LLC, 126 A.D.3d at 864, 5 N.Y.S.3d 302 ; Ash v. City of New York, 109 A.D.3d at 855, 972 N.Y.S.2d 594 ).
Here, the defendant failed to establish, prima facie, that the plaintiff did not know what had caused her to fall. In support of its motion, the defendant submitted a transcript of the plaintiff's deposition testimony and photographs of the accident site which raised a triable issue of fact as to whether the plaintiff tripped and fell on the uneven condition of the lobby floor (see Kelly v. Mall at Smith Haven, LLC, 148 A.D.3d 792, 794, 48 N.Y.S.3d 726 ; Davis v. Sutton, 136 A.D.3d 731, 26 N.Y.S.3d 100 ; Lamour v. Decimus, 118 A.D.3d 851, 852, 988 N.Y.S.2d 235 ). Since the defendant failed to meet its initial burden as the movant, the Supreme Court should have denied that branch of the defendant's motion which was for summary judgment dismissing the complaint 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 ).
RIVERA, J.P., MILLER, BRATHWAITE NELSON and WOOTEN, JJ., concur.