Opinion
2019–07158 Index No. 509835/16
03-17-2021
Cynthia THEARD, etc., appellant, v. G. FAZIO CONSTRUCTION CO., INC., defendant, St. Mary Magdalene Parish, et al., respondents (and a third-Party action).
Katz & Kern, LLP, New York, N.Y. (John Clark and Chet W. Kern of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (I. Elie Herman of counsel), for respondents.
Katz & Kern, LLP, New York, N.Y. (John Clark and Chet W. Kern of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (I. Elie Herman of counsel), for respondents.
WILLIAM F. MASTRO, A.P.J., REINALDO E. RIVERA, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for conscious pain and suffering and wrongful death, etc., the plaintiff appeals from a judgment of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), entered April 29, 2019. The judgment, upon an order of the same court dated March 21, 2019, inter alia, granting the motion of the defendants St. Mary Magdalene Parish, Rocklyn Asset Corp., and Roman Catholic Church Diocese of Brooklyn, N.Y., for summary judgment dismissing the amended complaint insofar as asserted against them, is in favor of those defendants and against the plaintiff dismissing the amended complaint insofar as asserted against those defendants.
ORDERED that the judgment is affirmed, with costs.
On February 2, 2015, Emmanuel Theard (hereinafter the decedent) allegedly sustained injuries when he tripped and fell on a sidewalk abutting premises owned by the defendants St. Mary Magdalene Parish and Roman Catholic Church Diocese of Brooklyn, N.Y., and managed by the defendant Rocklyn Asset Corp. (hereinafter collectively the Church defendants). The decedent subsequently died. The plaintiff, the decedent's wife and the administrator of his estate, commenced this action against the Church defendants and another defendant, inter alia, to recover damages for the decedent's conscious pain and suffering and wrongful death. After joinder of issue and the completion of discovery, the Church defendants moved for summary judgment dismissing the amended complaint insofar as asserted against them, arguing that the plaintiff was unable to identify the cause of the decedent's accident. The Supreme Court granted the motion and thereafter issued a judgment dismissing the amended complaint insofar as asserted against the Church defendants. The plaintiff appeals.
In a premises liability case, a defendant property owner moving for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that the plaintiff cannot identify the cause of his or her accident without engaging in speculation (see Gaither–Angus v. Adelphi Univ., 180 A.D.3d 875, 116 N.Y.S.3d 581 ; Kerzhner v. New York City Tr. Auth., 170 A.D.3d 982, 96 N.Y.S.3d 298 ; Gani v. Avenue R Sephardic Congregation, 159 A.D.3d 873, 72 N.Y.S.3d 561 ). "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]; see Hahn v. Go Go Bus Tours, Inc., 144 A.D.3d 748, 749, 40 N.Y.S.3d 549 ; Viviano v. KeyCorp, 128 A.D.3d 811, 811–812, 9 N.Y.S.3d 154 ; Racines v. Lebowitz, 105 A.D.3d 934, 963 N.Y.S.2d 348 ). Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused an accident, any determination by the trier of fact as to causation would be based upon sheer speculation (see Hahn v. Go Go Bus Tours, Inc., 144 A.D.3d at 749, 40 N.Y.S.3d 549 ; Pol v. Gjonbalaj, 125 A.D.3d 955, 5 N.Y.S.3d 186 ; Goldberg v. Village of Mount Kisco, 125 A.D.3d 929, 929–930, 5 N.Y.S.3d 149 ; Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 ). 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 (see Palahnuk v. Tiro Rest. Corp., 116 A.D.3d 748, 749, 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 ). "That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall. Rather, it means only that a plaintiff's inability to establish the cause of his or [her] fall—whether by personal knowledge or by other admissible proof—is fatal to a cause of action based on negligence" ( Izaguirre v. New York City Tr. Auth., 106 A.D.3d 878, 878, 966 N.Y.S.2d 122 ; see McRae v. Venuto, 136 A.D.3d 765, 766, 24 N.Y.S.3d 745 ; Pol v. Gjonbalaj, 125 A.D.3d at 955, 5 N.Y.S.3d 186 ).
Here, in support of their motion for summary judgment dismissing the amended complaint insofar as asserted against them, the Church defendants demonstrated, prima facie, that the plaintiff was unable to identify the cause of the decedent's fall (see Harris v. Live, Play & Bounce Corp., 164 A.D.3d 880, 82 N.Y.S.3d 106 ; Mauskopf v. 1528 Owners Corp., 102 A.D.3d 930, 931, 958 N.Y.S.2d 759 ). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the Church defendants' motion for summary judgment dismissing the amended complaint insofar as asserted against them and dismissed the amended complaint insofar as asserted against them.
MASTRO, A.P.J., RIVERA, DUFFY and BARROS, JJ., concur.