Jose Montas, Appellant,v.JJC Construction Corporation, et al., Respondents.BriefN.Y.January 2, 2013To be Argued by: LAUREN J. WACHTLER (Time Requested: 30 Minutes) Bronx County Clerk’s Index No. 27241/99 Court of Appeals of the State of New York JOSE MONTAS, Plaintiff-Appellant, – against – JJC CONSTRUCTION CORPORATION, THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, Defendants-Respondents. BRIEF FOR DEFENDANT-RESPONDENT JJC CONSTRUCTION CORPORATION Of Counsel: LAUREN J. WACHTLER MITCHELL SILBERBERG & KNUPP LLP Attorneys for Defendant-Respondent JJC Construction Corporation 12 East 49th Street, 30th Floor New York, New York 10017 Tel.: (212) 509-3900 Fax: (212) 509-7239 Date Completed: June 15, 2012 4687176.1 CORPORATE DISCLOSURE STATEMENT Defendant-Appellant JJC Construction Corporation does not have any corporate parents, subsidiaries, or affiliates. Dated: New York, New York June 14,2012 La tier MITCHELL S LBERBERG & KNUPP LLP Attorneys for Defendant-Respondent JJC Construction Corporation 12 East 49th Street, 30th Floor New York, New York 10017 Telephone: (212) 509-3900 Facsin1i1e: (212) 509-7239 T ABLE OF CONTENTS Pagels) STATEMENT OF THE CASE ................................................................................. 1 QUESTIONS PRESENTED ..................................................................................... 3 COUNTERST A TEMENT OF F ACTS .................................................................... 4 PLAINTIFF-APPELLANT'S DIRECT' CASE AT ·TRIAL ........................... 5 DEFENDANT-RESPONDENTS' MOTION FOR A DIRECTED VERDICT AT THE CONCLUSION OF PLAINTIFF- APPELLANT'S CASE ...................................................................... 11 DEFENDANT-APPELLANT JJC'S DIRECT CASE AT TRIAL .............. 12 DEFENDANT-RESPONDENTS' RENEWED MOTION FOR A DIRECTED VERDICT ...................................................................... 16 THE DECISION OF THE TRIAL COURT ................................................. 16 THE MAJORITY OPINION OF THE APPELLATE DIVISION, FIRST DEPARTMENT ................................................................................. 17 THE DISSENTING OPINION OF THE APPELLATE DIVISION, FIRST DEPARTMENT ..................................................................... 19 ARGUMENT .......................................................................................................... 21 OPENING BRIEF OF PLAINTIFF-APPELLANT ..................................... 21 POINT I: THE MAJORITY PROPERLY AFFIRMED THE TRIAL COURT'S GRANT OF A DIRECTED VERDICT IN FAVOR OF DEFENDANT-RESPONDENTS BECAUSE PLAINTIFF- APPELLANT FAILED TO ESTABLISH THAT ANY CO~TIUCT OF DEFE1\lTIANT-RESPONDENTS WAS THE PROXIMATE CAUSE OF HIS INJURy .......................................... 23 POINT II: PLAINTIFF-APPELLANT FAILED TO OFFER ANY CIRCUMSTANTIAL EVIDENCE THAT DEFENDANT- RESPONDENTS CAUSED HIS ACCIDENT .................................. 33 4668017.10 POINT III: THE TRIAL COURT DID NOT ENGAGE IN IMPROPER CREDIBILITY DETERMINATIONS AND THE APPELLATE DIVISION WAS CORRECT IN AFFIRMING THE GRANTING OF A DIRECTED VERDICT ............................................................ 38 POINT IV: THE DISSENT MISCHARACTERIZED EVIDENCE PRESENTED AT TRIAL AND MISAPPLIED ESTABLISHED NEW YORK PRECEDENT .............................................................. 41 A. The Dissent Improperly Characterized Plaintiff-Appellant's Speculation As Evidence .......................................................... 41 B. The Dissent Incorrectly Concluded That There Were Issues Of Fact To Be Determined By A Jury ..................................... 44 POINT V: PLAINTIFF-APPELLANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF NEGLIGENCE AGAINST DEFENDANT-RESPONDENT JJC, BECAUSE HE FAILED TO ESTABLISH THAT JJC OWED A DUTY TO PLAINTIFF- APPELLANT ..................................................................................... 47 POINT VI: PROCEDURAL CONSIDERATIONS WARRANTED A DIRECTED VERDICT IN THIS ACTION ....................................... 51 CONCLUSION ....................................................................................................... 54 11 TABLE OF AUTHORITIES CASES Acunia v. New York City Dept. of Educ., PAGE(S) 68 A.D. 3d 631 (1st Dep't 2009) ........................................................................ 32 Agli v. Turner Canst. Co., 246 A.D.2d 16 (1st Dep't 199~) ........................................................................ 26 Akerman v. City of New York, 226 A.D.2d 326 (2d Dep't 1996) ....................................................................... 52 Alabre v. Kings Flatland Car Care Ctr., Inc., 84 A.D.3d 1286 (2d Dep't 2011) ....................................................................... 30 Artessa v. City of Utica, 23 A.D.3d 1148 (4th Dep't 2005) ...................................................................... 30 Bernstein v. City of New York, 69 N.Y.2d 1020 (1987) ................................................................................ 26,29 Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241 (1944) .......................................................................................... 24 Broder v. MacNeil, 232 A.D.2d 163 (1st Dep't 1996) ...................................................................... 29 Castore v. Tutto Bene Rest. Inc., 77 A.D. 3d 599 (1st Dep't 2010) ........................................................................ 32 Clinger v. New York City Tr. Auth., 85 N.Y.2d 957 (1995) ........................................................................................ 29 Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493 (1978) ........................................................................................ 39 Caiazzo v. LoVece, 144 A.D.2d 61 7 (2d Dep't 1988) ....................................................................... 40 Derdiarian v. Felix Constr. Corp., 51 N.Y.2d 308 (1980) ........................................................................................ 25 Digelormo v. Wei!, 260 N.Y. 192 (1932) .......................................................................................... 26 Feblot v. New York Times Co., 32 N.Y.2d 486 (1973) ........................................................................................ 42 Fernandes v. Allstate Ins. Co., 305 A.D.2d 1 065 (4th Dep't 2003) .................................................................... 34 Figueroa v. City of New York, 5 A.D.3d 432 (2d Dep't 2004) ........................................................................... 24 Flores v. City of New York, 29 A.O.3d 356 (1 st Dep't 2006) ........................................................................ 30 Gayle v. City of New York, 92 N.Y.2d 936 (1998) ............................................................................ 22, 35, 40 Gomez v. Casiglia, 67 A.D.3d 965 (2d Dep't 2009) ................................................................... 24, 29 Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663 (1991) ........................................................................................ 37 Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986) ........................................................................................ 50 Hamill v. City of New York, 52 N.Y.2d 1045 (1981) ...................................................................................... 29 Hernandez v. Pace Elevator, Inc., 69 A.D.3d 493 (1st Dep't 2010) .................................................................. 48,50 Holliday v. Hudson Armored Car & Courier Serv., Inc., 301 A.D.2d 392 (1st Oep't 2003) ...................................................................... 35 In Matter of Austin v. Consilvio, 295 A.D.2d 244 (1st Dep't 2002) ...................................................................... 53 Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1 (1938) .............................................................................................. 37 4668017.10 11 J.E. v. Beth Isr. Hosp., 295 A.D.2d 281 (I st Dep't 2002) ...................................................................... 38 Jacino v. Sugerman, 10 A.D.3d 593 (2d Dep't 2004) ................................................................... 53, 54 Johnson v. Grand Union Co., 158 A.D.2d 517 (2d Dep't 1990) ....................................................................... 51 Kimball-Malone v. City of New York, 7 A.D.3d 675 (2d Dep't 2004) ................................................... 18, 20, 22, 23, 28 Lewis v. Metropolitan Transp. A uth., 99 A.D.2d 246 (1 st Dep't 1984) ........................................................................ 51 Lynn v. Lynn, 216 A.D.2d 194 (1st Dep't 1995) ................................................................ 25, 43 Manley v. New York Tel. Co., 303 N.Y. 18 (1951) ............................................................................................ 30 Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434,814 N.Y.S.2d 178 (2d Dep't 2006) .......................................... 34 Matter of Nowakowski, 2 N.Y.2d 618 (1957) .......................................................................................... 44 Mayer v. New York City Transit Auth., 39 A.D.3d 349 (1 st Dep't 2007) ........................................................................ 50 McCloud v. Marcantonio, 106 A.D.2d 493 (2d Dep't 1984) ....................................................................... 30 McNally v. Sabban, 32 A.D.3d 340 (1st Dep't 2006) .................................................................. 17, 25 Mercer v. City of New York, 88 N.Y.2d 955 (1996) ........................................................................................ 50 Merino v. New York City Transit Auth., 218 A.D.2d 451 (1st Dep't 1996) ...................................................................... 47 4668017.10 iii Michel v. Gressier, 298 A.D.2d 507 (2d Dep't 2002) ....................................................................... 34 Middleton v. Whitridge, 213 N.Y. 499 (1915) .......................................................................................... 40 Miller v. Nassau County Civ. Servo Commn., 85 A.D.3d 745 (2d Dep't 2011) ......................................................................... 29 Murray v. State, 38 N. Y.2d 782 (1975) ........................................................................................ 34 Nussbaum V. Lacopo, 27 N.Y.2d 311 (1970) ........................................................................................ 52 Oettinger v. Amerada Hess Corp., 15 A.D.3d 638 (2d Dep't 2005) ................................................................... 26, 33 Patrick v. Costco Wholesale Corp., 77 A.D.3d 810 (2d Dep't 2010) ......................................................................... 30 Perez v. Andrews Plaza Hous. Assocs., L.P., 88 A.D.3d 512 (1st Dep't 2009) ........................................................................ 44 Rendinaro v. City o/New York, 254 A.D.2d 342 (2d Dep't 1998) ....................................................................... 26 Rivera v. 2160 Realty Co., L.L.C., 4 N.Y.3d 837 (2005) .......................................................................................... 49 Robinson v. City o/New York, 18 A.D.3d 255 (1st Dep't 2005) .................................................................. 30, 42 Rosario v. City o/New York, 157 A.D.2d 467 (1st Dep't 1990) ...................................................................... 53 Santiago v. City o/New York, 61 A .. D.3d 574 (1st Dep't 2009) ........................................................................ 30 Schneider v. Kings Highway Hosp. Ctr., 67 N.Y.2d 743 (1986) ........................................................................................ 41 4668017.10 IV Siegel v. City a/New York, 86 A.D.3d 452 (1st Dep't 2011) .......................................... 18,28,30, 31, 32,43 Simmons v. Metro. Life Ins. Co., 84 N.Y.2d 972 (1994) ........................................................................................ 50 Solomon v. City a/New York, 66 N.Y.2d 1026 (1985) ...................................................................................... 24 Sweeney v. Bruckner Plaza Assocs., 57 A.D.3d 347 (1st Dep't 2008) ........................................................................ 44 Szczerbiak v. Pilat, 90 N.Y.2d 553 (1997) .................................................................................. 24, 44 Trillo v. GerlY, 135 A.D.2d625 (2dDep't 1987) ....................................................................... 52 Valdez v. City a/New York, 18 N.Y.3d 69 (2011) .......................................................................................... 48 Vega v. Restani Constr. Corp., 18 N.Y.3d 499 (2012) .................................................................................. 38, 39 Vera v. Knolls Ambulance, 160 A.D.2d 494 (1st Dep't 1990) ...................................................................... 53 Vintage, LLC v. Laws Canst. Corp., 13 N.Y.3d 847 (2009) ........................................................................................ 24 Zuckerman v. City a/New York, 49 N.Y.2d 557 (1980) ........................................................................................ 32 STATUTES C.P.L.R. 4401 ........................................................................................ 29, 30, 44, 52 4668017.10 v STATEMENT OF THE CASE Defendant-Respondent JJC Construction Corporation C'JJC"), by its attorneys Mitchell Silberberg & Knupp LLP, respectfully submits this brief in opposition to the appeal of Plaintiff-Appellant Jose Montas from an Order of the Supreme Court, Appellate Division, First Department, dated February 23, 2012, which affirmed the Order of the trial court, County of Bronx (Hon. Jeffrey Wright), dated February 18, 2010, and entered on April 12, 2012, which dismissed Plaintiff-Appellant's complaint at the conclusion of trial. As discussed in Point I, infra, the majority decision of the First Department C'Majority") properly affirmed the trial court's Order granting Defendant- Respondents' n10tion for a directed verdict dismissing the case. The Majority correctly recognized that the only evidence presented at tria] by Plaintiff-Appellant as to the cause of his accident, and as to any conduct of Defendant-Respondents that might have caused his accident, amounted to nothing more than rank speculation and suggestion. Defendant-Respondents, on the other hand, presented evidence of an alternative and likely explanation for Plaintiff-Appellant's accident which was not caused by the work of JJC. Uncontradicted testimony at trial established that an ongoing masonry pointing project on an adjacent building, having nothing to do with any work JJC was performing near where the accident occurred, created a dross that was identical in color and consistency to the 1 4668017.10 substance on which Plaintiff-Appellant claimed he slipped. Where, as here, Plaintiff-Appellant presents nothing more than speculation as to Defendant- Respondents' responsibility for his accident, and where there is a probable alternate explanation for the accident for which Defendant-Respondents had no responsibility, the trial court correctly granted Defendant-Respondents' motion for a directed verdict at the end of trial, and the Appellate Division correctly affirmed the trial court's Order. As discussed in Points III through V, infra, the dissenting opinion of the First Department C'Dissent") is based on a flawed analysis of the facts and law, and its reasoning was correctly rejected by the Majority. First, the Dissent improperly credits Plaintiff-Appellant's testimony regarding JJC's responsibility for the creation of the material on which he slipped, despite the fact that even a cursory review of Plaintiff-Appelant's testimony, as well as that of the other witness who testified on his behalf at trial, demonstrates that such testimony consisted solely of speculation. Second, while the Dissent suggests that the trial court engaged in "credibility determinations," the fact is that both the trial court, and the Majority in its affirmance, properly applied well-established New York la\v which stands for the proposition that speculation is simply insufficient to support a prima facie case of negligence. Third, the Dissent incorrectly states that JJe, an independent contractor, owed a duty of care to Plaintiff-Appellant, despite 2 4668017.10 the fact that there was no evi dence presented at trial that J J C had created a dangerous condition, or that JJC had actual or constructive notice of a dangerous condition. FinaJ1y, the Dissent places undue importance on procedural considerations in concluding that the trial court should have submitted this case to the jury and reserved decision to set aside any verdict as against the weight of the evidence. In this case, however, there was simply no evidence to submit to the jury, and the case was properly dismissed by a directed verdict. Neither the Dissent, nor Plaintiff-Appellant in his opening brief, present any compelling reason as to why the careful analysis of the Majority, on which it based its affirmance, should be disregarded. For the reasons stated below, this Court should affirm the decision of the Majority, that the trial court properly granted Defendant-Respondents' motion for a directed verdict at the end of the trial of this case. QUESTIONS PRESENTED Whether the First Department was correct in affirming the trial court's granting of a directed verdict in Defendant-Respondents' favor at the conclusion of trial where Plaintiff-Appellant (i) failed to offer any evidence of where the material on which he slipped came from, but relied instead on mere speculation and suggestion regarding the source of the material; (ii) failed to establish any evidence 3 4668017.10 of a nexus between the materia] which he identified as that on which he slipped, and any material JJC was using or had created in the performance of its work; (iii) failed to offer anything other than speculation that the materials JJC was using, or that any action undertaken by JJC, was the proximate cause of his injury; and where (iv) Defendant-Respondents offered an equally if not more plausible reason for Plaintiff-Appellant's accident, presenting uncontroverted evidence that the material Plaintiff-Appellant identified as the materia] on which he slipped more likely came from a concurrently occurring masonry pointing project being performed by others on a building adjacent to the location of Plaintiff-Appellant's accident, entirely unrelated to any work being performed by JJC; and (v) Plaintiff- Appellant offered no evidence that JJC was negligent in any way, or that JJC had (a) created or permitted any dangerous condition to exist, or (b) had any actual or constructive notice of any dangerous condition which allegedly caused Plaintiff- Appellant's accident. This Court should answer in the affirmative, and affirm the Majority decision of the Appellate Division, First Department, which affirmed the trial court's decision to direct a verdict in favor of the Defendant-Respondents. COUNTERSTATEMENT OF FACTS In 1996, JJC entered into a contract with the City of New York (the "City") to remove an existing bridge and underpass, and reconstruct the roadway on the 4 4668017.10 Grand Concourse in the Bronx. (A 741-42)1 The job was done in four phases and was completed in November 1999. (A742) Phase Three of the job consisted of removing the asphalt roadway and installing new sub-base, with Con Edison working on manholes on either side of the Grand Concourse. (A 752) The construction area in which JJC performed its contract with the City was delineated during each phase of the job by a six-ton concrete "jersey" barrier and chain link fence. (A 743) PLAINTIFF-APPELLANT'S DIRECT CASE AT TRIAL According to the testimony of Plaintiff-Appellant Jose Montas, on the evening of September 11, 1999, Mr. Montas met with some friends on the comer of East Tremont and Monroe Avenue in the Bronx, across the street from a bodega. (A56, 95, 220) Mr. Montas crossed the street in the company of his friends and his cousin, stepping over a plank of wood of unknown origin that lay on the ground in his path to the bodega, without incident. He exited the bodega with his cousin at approximately 9 P.M. that evening, after dark, again stepped over the piece of wood, lost his footing, and slipped on what he described as "sand and construction debris" in a street where JJC was not perforn1ing and never had perforn1ed any work. (A143-44, 159-60,337,556) I References to the Appendix on this appeal are hereinafter designated by the letter "A" followed by a number. 5 4668017.10 At trial, Mr. Montas identified photographs of the area in which he fell, and the materials on which he slipped. While he did not know who had taken the photographs, or when the photographs were taken, he circled the specific area where he fell in the photographs. (A60-68, 79-82) He also testified that the photographs depicted the substance and coloration of the material on which he slipped, which he testified repeatedly throughout trial was a "greyish-white" material. (A88-89, 290-91) Mr. Montas also testified that, at some point during the course of the construction project, he had observed certain machines in the area in which JJC was working, and that he believed that the "sand" identified in the photographs presented at trial came from the work JJC was performing behind the six-ton jersey barrier and construction fence. (A57-60, 76-77) Additionally, Mr. Montas testified that there was a building adjacent to the bodega which was surrounded by a sidewalk bridge, or shed, which extended onto the curb of the street where Mr. Montas slipped, and was five to ten feet from where Mr. Montas was walking when he fell, directly across from the bodega. (A283-87,307-08) Mr. Montas testified that he knew that a sidewalk bridge was intended to serve as protection for pedestrians \valking belo\v \vhere work was being performed on the fayade of the building above, but also testified that he had never personally witnessed anyone working on the building, and that he believed 6 4668017.10 that the building's fac;ade was made of wood. (A209, 312) He conceded, however, that he (a) had never performed any outdoor construction work, (b) was not familiar with what materials were utilized in the construction of roadways such as the City construction project on which JJC was working, (c) did not know what "pointing" work was, (d) did not know what materials were used in pointing, (e) did not know what type of dross was created from pointing work, and (f) had never performed anything other than interior construction work which required only the use of "hand tools." (A230, 260-65, 308) He also conceded that he \vas in the area where his accident occurred on a daily basis, frequented the bodega regularly, and although he had often observed the condition which allegedly caused his accident, had never made any complaint - oral or written - to anyone about the condition. (A259-60) Photographs produced at trial demonstrated that the adjacent building, which Mr. Montas testified was five to ten feet away from the location of his accident, was, contrary to Mr. Montas' testimony, made of masonry and brick, not wood. (A 776-83, A913-922) Plaintiff-Appellant offered no evidence that the fac;ade of the adjacent building had been changed from masonry to any other materia] from 1999 through the date of the trial in 2010. CA. 782~ 783) At the close of Mr. Montas' testimony, the only facts established were an identification of the general vicinity in which Mr. Montas slipped, and Mr. 7 4668017.10 Montas' repeated identification of the greyish-white ""construction debris and sand" on which he claimed he slipped, and which he circled on his trial exhibit. As to the source of this Hconstruction debris and sand," however, Mr. Montas offered only his own speculation that he thought the greyish-white debris came from the City construction site. The City inspector, Ohene Duodo, who testified on Plaintiff-Appellant's direct case, confirmed the existence of the pointing project on the adjacent building which was being performed simultaneously with the City roadway project, which had nothing to do with any work the City or JJC was performing, and which was not part of the City contract with JJC. (A541-43) Mr. Duodo confirmed that City inspectors were on the jobsite daily, and that he had never made or received any complaints of an unsafe or dangerous condition being made or left by JJC, nor had he ever observed on his daily inspections of the jobsite any materials being left by JJC in the roadway or anywhere near the roadway where Mr. Montas slipped. (A550-53, 554-56, 558-59) He also confirmed that the material outside of the barrier depicted in Plaintiff-Appellant's exhibits, which Mr. Montas had repeatedly testified during trial was the ·"sand" on which he slipped, was not the material the City specified for use in its contracts, for construction or as substrate. (A539-41, 901-04) 8 4668017.10 Mr. Duodo also confirmed that during the history of the City project on which JJC was working, there were never deliveries of any materials made to the work site or dumped on the roadway outside the six ton jersey barrier (A544), and that delivery of any construction materials utilized by JJC was made to a roadway at Grand Concourse and 138th Street to 204th Street, within the worksite where JJC was working, and so far out of the vicinity from where Mr. Montas fell that it was not even depicted in any of the photographs that Plaintiff-Appellant put into evidence during trial. (AS60) Plaintiff-Appellant's only other witness was Sergio Sanchez, Mr. Montas' cousin. (A624) Mr. Sanchez testified that he came to this country in 1999, two years after the construction project had commenced, and that he was not familiar with City contracts, City projects or the materials utilized in those projects, or this project in particular, and that his construction experience was limited to the performance of interior construction work. (A590-92, 630-34) Mr. Sanchez was unsure of where any of the construction debris and/or sand on which Mr. Montas slipped came from, and was able only to speculate as to on what Mr. Montas had slipped, i.e., whether it was sand or something else, or the color of the materials or 9 4668017.10 sand, since it was dark on the night of accident.2 (A638-39) Neither Mr. Montas nor Mr. Sanchez had taken any of the greyish-white material from the site of the accident at any time. (A287, 638) Thus, at the conclusion of Plaintiff-Appellant's direct case, the only testimony elicited by Mr. Montas was his insistence that he had slipped on a greyish-white, sandy material, which he suggested might have come from the nearby worksite, which was barricaded from the location of the accident by a construction fence and six ton jersey barrier. In addition to his and his cousin's admissions that neither knew what pointing work was, or how pointing work was performed, or what dross was created as a result of pointing work, Mr. Montas and Mr. Sanchez both testified that they had never personally witnessed any such work being performed on the building adjacent to the location of the accident. This testimony stood in contrast to that ofPlaintiff-Appellant's only other witness, the former City inspector who had confirmed that the "sand" on which Plaintiff-Appellant allegedly slipped was simply not the type of sand used in connection with City contracts, and that he was personal1y aware of the pointing project occurring on the building adjacent to the road in front of the bodega where Mr. Montas slipped. (.A.539-43) 2 On re-direct examination by Plaintiff-Appellanfs counsel, Mr. Sanchez was then able to recall only that the material on which Mr. Montas slipped ·'looked like" the grey-white material in Plaintiff-Appellant's photographic exhibits - precisely the same grey-white material that Mr. Montas had repeatedly identified as the cause of his accident. (A640) 10 4668017.10 The Majority correctly found that the Plaintiff-Appellant and his cousin's testimony was too speculative to establish a prima facie of negligence against the Defendant -Respondents: Plaintiffs cousin admitted on cross-examination that he did not know if the sand residue came from inside or outside the fence surrounding the roadway project. While he speculated that it 4 could be' that it came from inside the fence, he conceded that he did not know what material Plaintiff slipped on. (A929) DEFENDANT-RESPONDENTS' MOTION FOR A DIRECTED VERDICT AT THE CONCLUSION OF PLAINTIFF-APPELLANT'S CASE At the conclusion of Plaintiff-Appell ant's case, JJe made a motion for a directed verdict based on the fact that Plaintiff-Appellant had not provided any proof or evidence that JJe had created the condition which caused Plaintiff- Appellant's accident, and that Plaintiff-Appellant had only been able to provide speculative testimony that there was dust, sand, debris, or some other substance on which he had slipped. (A 704-11) JJe also argued on its motion that the condition which Plaintiff-Appellant identified as the cause of his accident was transient and could not be attributed to any work performed by JJe, and nor could there be any basis for a "reasonable inference" that the accident had occurred as a result of any work being performed by JJe, much less as a result of any negligence of JJe. JJe argued that the establishment of this element which Plaintiff-Appellant failed to do on his direct 11 4668017.10 case - is necessary to support any argument that circumstantial evidence could serve as the basis for a reasonable inference that the accident could have been caused by any of JJC's actions. (A711-28) The trial court reserved decision on this motion until the conclusion of the trial. DEFENDANT-APPELLANT JJC'S DIRECT CASE AT TRIAL On Defendant-Respondent JJC's direct case, Donald Zanfardino, the former construction foreman on the worksite from 1996 through the conclusion of the project in 1999, confirmed his 30-year history in the construction industry, and in particular his knowledge of the nature of the project, the areas where the construction work was being performed, the dates on which various construction was being performed, and his familiarity with road work, pointing, concrete, types of construction materials (including the types required in City contracts), and the various phases of the job which JJC performed for the City. He was also experienced with brick fayade pointing work of the kind being performed on the unrelated construction project above the sidewalk bridge at the accident location. (A740-42) In aid of his testimony, Mr. Zanfardino referred to a chart which defined clearly the areas of work on the project in relation to the bodega on the comer of East Tremont and Monroe Streets, in the area where Plaintiff-Appellant slipped. 12 4668017.10 (A905) Mr. Zanfardino also referred to JJC's daily logs which showed the date, time, and what work JJC was perfonning on a given date. (A 761-62, 908-12) JJC's demonstrative evidence at trial included the precise type of sand and sub-base material used by JJC in the City project, both of which were required by express specifications in the City contract. (A548, 559, 747-48, 906-07) These trial exhibits showed that the sand used by JJC in the project was yellowlbrown in color, bearing no resemblance whatsoever to the greyish-white material on which Mr. Montas repeatedly testified that he slipped. (A 745-50, 906) Further, these exhibits and Mr. Zanfardino' s testimony demonstrated that the sub-base used by JJC at the time of Mr. Montas' accident was a coarse gravel, used only in an area far removed from the location of the accident. (A 752-56) Nor did JJC use any lumber or wood during the third phase of the construction project in 1999, or ever leave any materials anywhere in the street or roadway adjacent to the area where Mr. Montas slipped. (A 756-58) Mr. Zanfardino confinned that any delivery of materials to JJC was made approximately 150 to 200 feet behind the bodega and that the delivery area was accessed by a separate service road both areas that were so far from the bodega that it was not even visible in any of Plaintiff- LA .. ppellant's photographs. (LA .. 768-69) Mr. Zanfardino also confinned that in the week preceding Mr. Montas' accident, during the month of September 1999, any removal of concrete was 13 4668017.10 performed at a distance of twenty to forty feet from the bodega, and again was not even in an area visible in any of the photographs that Plaintiff-Appellant put into evidence. (A 759) He further testified that no work related to the chipping, cutting or chopping of cement occurred in the time period immediate1y prior to Mr. Montas' accident, or in the vicinity of Mr. Montas' accident. (A 784-85, 787-91) This was also confirmed by JJC's daily logs for September 7, 8, 9, 10 and 11, the days preceding and the day of the accident. (A908-I2) As reflected both in these daily logs and in the testimony of Mr. Zanfardino, none of the work performed by JJC during this time period, in the area where Mr. Montas slipped, involved any chopping or remova1 of concrete. (A 765, 784-85, 787-91) Mr. Zanfardino testified that another contractor, on a project unrelated to JJC's job for the City, was repointing the brick and masonry fac;ade work around an entire large building adjacent to the bodega, and that he had personally observed this pointing work being conducted. (A 792, 794, 798) Uncontradicted photographic evidence confirmed that this building, adjacent to the site of Mr. Montas' accident, was made of brick and masonry. (A913-22) Mr. Zanfardino described specifical1y how, during a pointing project such as that ongoing at the adjacent building at the time of }y1r. Montas' accident, mortar is chipped out of the brick fac;ade and replaced with new cement, and that the pointing process produces a gritty whitish-grey material. (A 794-97) 14 4668017.10 Mr. Zanfardino also testified that contractors involved in the pointing process utilized wooden 2 x 4' s in their work. (A 797-98) At the conclusion of Defendant-Respondent JJC's direct case, it was established, without contradiction, that: (i) JJC had not performed any work wruch involved cutting, chopping or breaking of any concrete in the area where Mr. Montas slipped on the day of or during the days prior to the accident; (ii) materials delivered to JJC were always delivered to a service road which could only be accessed more than 150 feet away from the area where Mr. Montas slipped; (iii) there was never any occasion where the City inspector, or anyone else, observed or reported that JJC caused any dangerous condition, or that any materials from JJC were left outside of JJC's demarcated worksite; (iv) that, simultaneously with but unrelated to the City project, pointing work was being performed on a building adjacent to the bodega which produced the precise greyish-white grit or "sand" which Mr. Montas repeatedly confirmed, and his cousin Mr. Sanchez agreed, was the material on which Mr. Montas slipped; and (v) the material used by JJC during the City project, which was identified and put into evidence at trial, was either a yellow sand, or a sub-base containing large pieces of rock which was used in an area located far from the site of Mr. Montas' accident. 15 4668017.10 DEFENDANT-RESPONDENTS' RENEWED MOTION FOR A DIRECTED VERDICT At the conclusion of the trial, Defendant-Respondents renewed their motion for a directed verdict, based on the fact that Plaintiff-Appellant had failed to make out a prima facie case or offer anything other than mere suggestion or speculation as to how the accident could have occurred, or as to any nexus between the work being performed by JJC and Plaintiff-Appellant's accident. (A894-95) THE DECISION OF THE TRIAL COURT In granting Defendant-Respondents' motion for a directed verdict after trial, the trial court pointed out that it did not see any logical nexus between the incident of Plaintiff-Appellant's fall and either of the Defendant-Respondents, as "there is no testimony that associated the instrumentality of the accident to either defendant." (A895) In its written decision dated February 18, 2010, following the conclusion of trial, the trial court noted: The grit or sand was the cause of the fall. The only evidence as to the source of the sand came from JJC's witness who testified that its white collar [sic] made it different from any material used in the renovation project, which was light brown or dark brown. No such material is visible in the photographs taken of the intersection. Those photographs showed a white substance that both the Plaintiff and his witness blamed for the accident. Indeed, the case was tried almost as a res ipsa loquitur case. However, the Plaintiffs evidence was 16 4668017.10 much more suggestion than proof regarding the source of the sand. This evidence was met by physical evidence, in the form of samples of the type of sand used in the project, as well as the testimony of JJC's witness, who placed another project at the site of the accident, and in describing the dross from the project, matched it to the cause of the Plaintiff s fall. Over and above the theories of liability put forward by the Plaintiff, there is insufficient evidence of causation to put this dispute before a jury. (A 7a (emphasis added)) THE MAJORITY OPINION OF THE APPELLATE DIVISION, FIRST DEPARTMENT In a decision dated February 23, 2012, the First Department affirmed the trial court's Order by a three-Justice majority. The Majority held that Plaintiff- Appellant had fai1ed to meet his initial burden to show that either of Defendant- Respondents' negligence proximately caused his injury. (A927) The Majority also recognized well-established precedent that if there are several possible causes of an injury, only for one of which Defendant-Respondents could be responsible, Plaintiff-Appellant must render those other causes '''sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation. '" (A928, quoting McNally v. Sabban, 32 A.D.3d 340, 341 (1st Dep't 2006) (emphasis added)) Applying this well-settled law, the Majority properly affirmed the trial court's granting of a directed verdict in favor of Defendant-Respondents, holding that 17 4668017.10 the facts show that it is just as likely that the accident was caused by debris from the pointing project as by debris from the roadway project, and any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation. (A929, citing Siegel v. City a/New York, 86 A.D.3d 452,455 (1st Dep't 2011); Kimball-Malone v. City a/New York, 7 A.D.3d 675, 675- 76 (2d Dep't 2004)) Specifically, the Majority emphasized that Plaintiff-Appellant had not introduced into evidence a sample of the sand on which he slipped; had never worked with concrete or performed road work; and had never performed pointing work and was not familiar with the dross it created. (A927-28) The Majority pointed out that JJC's witness testified that the material on which Plaintiff-Appellant slipped came from an unrelated pointing project that was ongoing in the vicinity of the accident, and that Plaintiff-Appellant's own witness had testified that such a project was in progress at the time of the accident. (A929) In its affirmance, the Majority also noted that while Mr. Montas and his cousin both testified that they did not personally see any work being done on the building adjacent to the sidewalk bridge, neither individual was typically in that area between the hours of9:30 A.M. and 5:00 P.M., when work was being performed. (A929) 18 4668017.10 THE DISSENTING OPINION OF THE APPELLATE DIVISION, FIRST DEPARTMENT The two dissenting Justices argued that "[v]iewing the evidence in the light most favorable to plaintiff, a finder of fact could rationally have found that the sandy debris upon which he claims to have slipped and fallen was generated by JJC's activities." (A941) However, rather than properly addressing the critical issue of whether Plaintiff-Appellant had met his initial burden of substantiating even a prima facie case of negligence sufficient to be considered by a jury - as both the trial court and the Maj ority properly recognized - the Dissent side-stepped that issue and incorrectly posited that: [t]he dispositive issue in this matter is whether the sandy or gritty substance on which plaintiff slipped was the byproduct of the concrete-cutting and concrete-removal operations undertaken by the City's contractor, defendant JJC, as plaintiff alleges, or the cleaning and pointing of brickwork being performed by another, unidentified, contractor at a nearby building, as JJC maintains. (A931- 32) After setting forth its speculative version of what the facts might be and, nl0re importantly, the evidence (or lack of evidence) presented at trial, the Dissent remarked that" [t ]he divergent testimony given by the different witnesses during trial merely serves to establish the existence of credibility issues that the trier of fact was required to resolve in making its findings." (A938) Notably, the Dissent incorrectly identified portions of testimony from Plaintiff-Appellant and his 19 4668017.10 cousin, Mr. Sanchez, including their purported testimony that "'they had viewed the whitish dust and debris generated by JJC's concrete-cutting-and-breaking activities, and that the debris was on both sides of the concrete barrier," as a basis for its supposition that there were credibility issues to be resolved by the jury. (Id.) But as discussed below in Point IV, infra, and as properly recognized by the Majority, this characterization ofPlaintiff-Appellant's and his cousin's testimony ignores settled New York law that speculation, such as that engaged in by Plaintiff- Appellant and his cousin, and indeed the Dissent, is not evidence, and cannot serve to raise an issue of fact to be determined by a jury. The Dissent also incorrectly concluded that the trial court had made improper fact and credibility determinations when it granted Defendant- Respondents' motion for a directed verdict. However, the Majority directly addressed, and rejected, this argument: Contrary to the dissent's view, the trial court did not improperly make credibility determinations or decide factual issues when it granted defendants' motions. Rather, it correctly determined that plaintiff's self- serving testimony that JJC's concrete-chopping activities were the source of the greyish-white sand in the street on which he slipped was too speculative to raise an issue of fact. (A927) Based on its careful analysis of the facts and law, the Majority was correct in affirming the Order of the trial court granting Defendant-Respondents' motion for a directed verdict at the close of trial. 20 4668017.10 ARGUMENT As set forth in the Counterstatement of Facts above, and as recognized by the Majority, Plaintiff-Appellant offered at trial only mere speculation and suggestion in support of his clainl that Defendant-Respondents were responsible in any way for his accident. OPENING BRIEF OF PLAINTIFF-APPELLANT Plaintiff-Appellant's argument in his opening brief can be condensed into one general, and incorrect, theme: that the evidence presented at trial was sufficient to establish that JJC's construction work, and not the simultaneous pointing project, led to the creation of the greyish-white substance upon which Plaintiff-Appellant slipped. Plaintiff-Appellant attempts to support this argument both through mischaracterizations of the evidence presented at trial, and misapplication of the controlling legal standards. Throughout his brief, Plaintiff-Appellant suggests that there were multiple "issues of fact" which warranted the submission of his case to ajury. First, Plaintiff-Appellant argues that there was no real proof presented at trial of the existence of the pointing project, other than the testimony of Mr. Zanfardino. (Br. at 17, 34-35) As set forth infra at pages 27 through 33, this is simply incorrect. The City inspector, Plaintiff-Appellant's own witness, even confirnled this fact. (A541-43) Second, Plaintiff-Appellant urges that a permit issued to the building 21 4668017.10 upon which the pointing project occurred could have raised ~4significant issues of fact" regarding whether the pointing project was actually ongoing at the time of Plaintiff-Appellant's accident. (ld. at 17-18, 34-35) As shown at pages 35 through 37, infra, Plaintiff-Appellant never even offered such a permit into evidence, which leads to the conclusion that such a permit simply did not exist. Third, Plaintiff-Appellant claims that the Majority ignored testimony indicating that JJC was conducting concrete excavation work on the day of his accident near the accident site. (Id. at 22) Yet as shown at pages 41 through 44, infra, testimony and JJC's daily logs demonstrated that this simply was not the case. Plaintiff-Appellant also argues that he established a prima facie case of negligence against Defendant-Respondents because he was not required to rule out of every possible cause of his injury, but rather 440nly prove that it was -more likely' or 4 more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency." (Br. at 15, quoting Gayle v. City of New York, 92 N.Y.2d 936,937 (1998» He further contends that circumstantial evidence, which he erroneously argues existed in this case, can itself be sufficient to substantiate a claim of negligence. (Id. at 28-34) As shown below at pages 28 through 33, infra, while a plaintiff need not rule out every possible cause of injury, mere speculation as to causation is inadequate to sustain a cause of action. And as discussed at pages 33 through 37, infra, where a plaintiff relies on circumstantial 22 4668017.10 evidence to assert liability against a defendant, he bears the burden to provide evidence that renders causes other than the defendant's negligence sufficiently remote to enable the trier of fact to reach a verdict based upon logical inferences to be drawn from the evidence and not, as here, upon speculation. Finally, Plaintiff- Appellant argues that the trial court and the Majority engaged in improper credibility determinations and deprived the jury of its rightful role of determining contested issues of fact. (Id. at 20-23, 36-38). But as shown below, the trial court and Majority correctly found that a court cannot engage in credibility determinations where, as here, Plaintiff-Appellant's evidence consists solely of speculation, regardless of how credible he might be. Neither Plaintiff-Appellant's factual nor legal arguments are availing. As will be discussed in detail below, the trial court and the Majority properly characterized and considered all of the evidence presented at trial, and correctly applied the controlling legal principles. POINT I THE MAJORITY PROPERLY AFFIRMED THE TRIAL COURT'S GRANT OF A DIRECTED VERDICT IN FAVOR OF DEFENDANT-RESPONDENTS BECAUSE PLAINTIFF-APPELLANT FAILED TO ESTABLISH THAT ANY CONDUCT OF DEFENDANT-RESPONDENTS WAS THE PROXIMATE CAUSE OF HIS INJURY This Court has recognized the well-established rule that a grant of a directed verdict is 4(,appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of 23 4668017.10 the nonmoving party." Szczerbiak v. Pilat, 90 N.Y.2d 553,556 (1997) (emphasis added); see also Figueroa v. City of New York, 5 A.D.3d 432, 433 (2d Dep't 2004).3 When determining the propriety of the grant of a directed verdict in a defendant's favor, "[t]he focus must be on whether the plaintiff has made out a prima facie case of liability." Gomez v. Casiglia, 67 A.D.3d 965, 966 (2d Dep't 2009). "To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom." Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985). Because Plaintiff-Appellant faiJed to establish a prima facie case of negligence, as he was unable provide any competent evidence that anything Defendant-Respondents did was the proximate cause of his injury, a directed verdict in Defendant-Respondents' favor was entirely appropriate and the Appellate Division was correct in affirming the trial court's determination. Before his case could be put before a jury, Plaintiff-Appellant bore the initial burden of showing that 4H[Defendant-AppelIants'] negligence was a substantial cause of the events which produced the injury." (A927, quoting Derdiarian v. 3 Notably, other Court of Appeals cases cited by Plaintiff-Appellant support affinllance of the directed verdict here, as this Court has long recognized that a directed verdict is an appropriate tool for a trial court to employ where '''there is no rational process by which the jury could have based a finding in [plaintiffJ's favor." See Vintage. LLC v. Laws Const. Corp., 13 N.Y.3d 847, 849 (2009)~ see also Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 246 (1944) (affirming judgment entered upon directed verdict where "'no reasonable man could accept it and base an inference upon it"). 24 4668017.10 Felix Constr. Corp., 51 N. Y .2d 308, 315 (1980» Recognizing that throughout trial Defendant-Respondents had presented ample evidence of an alternative and probable source of the material on which Plaintiff-Appellant slipped - namely, an ongoing pointing project adjacent to the site of the accident that was entirely unrelated to JJC's project with the City - the Majority held: Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable or probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury. Even when there is no requirenlent for the plaintiff to exclude every other possible cause other than a defendant's breach of duty, the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation. (A928, quoting Lynn v. Lynn, 216 A.D.2d 194, 195 (1 st Dep't 1995); McNally v. Sabban, 32 A.D. 3d 340, 341 (1 st Dep't 2006) (internal quotation marks omitted; enlphasis added) In applying this standard, the Majority properly followed precedent established repeatedly by this Court, holding that where, as here, an accident could just as likely have been caused by some factor other than a defendant's alleged negligence, a plaintiff's claim is properly dismissed. See Bernstein v. City of New York, 69 N.Y.2d 1020,1021 (1987); Digelormo v. Wei!, 260 N.Y. 192,200 (1932) ("The rule is well settled that where there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without 25 4668017.10 proving the injury was sustained wholly or in part by a cause for which the defendant was responsible."). More specifically, where "it is just as likely that the accident could have been caused by some other factor," to wit, dross from pointing work being done on a building adjacent to scene of the accident, "any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation," and the plaintiff therefore cannot substantiate a prima facie showing of proximate cause. Oettinger v. Amerada Hess Corp., 15 A.D.3d 638,39 (2d Dep't 2005) (citations omitted); see also Agli v. Turner Canst. Co., 246 A.D.2d 16, 25 (1 st Dep't 1998); Rendinaro v. City of New York, 254 A.D.2d 342, 342 (2d Dep't 1998) ("Where there are various possible proximate causes of an accident, it is incumbent upon the plaintiff to demonstrate that it is remote that factors other than defendant's negligence caused the accident."). Defendant-Respondents presented evidence at trial establishing that the greyish-white substance on which Plaintiff-Appellant and his cousin repeatedly testified Plaintiff-Appellant slipped was actually dross from a pointing project on a building adjacent to the site of the accident. This evidence included testimony from Mr. Zanfardino, JJC's project supervisor, and, as the l\1ajority pointed out, Plaintiff-Appellant's own witness Mr. Duodo, the City inspector, who testified that the pointing project was ongoing at the time of the accident. (A541-43) The only 26 4668017.10 evidence presented to contradict this theory was the speculative testimony of Plaintiff-Appellant and his cousin, who claimed to have not ever seen any pointing work being done on the building. But, as astutely noted by the Majority, Plaintiff- Appellant and his cousin were also not present in the area during the work day, i. e., between the hours of9:30 A.M. and 5:00 P.M.4 (A224-25, 929) The Majority accurately summarized the numerous ways in which Plaintiff- Appellant failed to contradict the evidence of the pointing project presented by Defendant-Respondents, much less render the explanation that he slipped on material created by the pointing proj ect less than 10 feet away from where he fell sufficiently remote to enable a jury to reach a verdict based upon the logical inferences to be drawn from the evidence, rather than mere speculation: Plaintiff testified that he knew he slipped on sand because he felt it underneath his foot when he fell down. However, he did not introduce into evidence a sample of the sand on which he slipped. While plaintiff testified that the sand was the result of the chopping of concrete on the roadway project, he conceded that he never worked with concrete or did road work. Plaintiff and his cousin also conceded that they never did any pointing work and that they were not familiar with the dross it created. (A928) 4 Although the Dissent and Plaintiff-Appellant make much of the "construction backgrounds" of Plaintiff-Appellant and his cousin, both Plaintiff-Appellant and his cousin conceded that they knew nothing about brick pointing work: what it is, the type of material used in that work, or what type of debris is generated by such work. (A230, 260-63, 308) This testimony stood in stark contrast to the thirty-year construction experience of Mr. Zanfardino, JJC's foreman who was not only at the site on a daily basis for two years, but had personally performed pointing work in the past, and was familiar with the processes invoJved in such work and the dross it creates. (A 794-97) 27 4668017.10 As the Majority correctly concluded, it is clear from a consideration of all the evidence presented at trial that it was at least just as likely that Plaintiff- Appellant's accident was caused by dross created by the pointing project, as by debris from the City construction project. In such circumstances, any determination that could have been made by a jury as to the cause of the accident would necessarily, by definition, have been improperly based on speculation as to the instrumentality that caused the Plaintiff-Appellant's injury. (A929-930, quoting Siegel, supra, 86 A.D.3d at 455; Kimball-Malone v. City of New York, supra, 7 A.D.3d at 675-76) Where, as here, a plaintiff has provided nothing but speculation as to the cause of his accident, he has not, under settled law, established a sufficient link to the defendant, and a directed verdict is proper. As this Court has held, I.'[a] jury verdict must be based on more than mere speculation or guesswork." Bernstein, supra, 69 N. Y .2d at 1021; see also Hamill v. City of New York, 52 N. Y.2d 1045 (1981). Following this rule, New York courts have consistently recognized that a trial court's grant of a defendant's motion for a directed verdict pursuant to CPLR 4401 is warranted where a finding in favor of the plaintiff I.I.could only have been reached by the jury based upon speculation, rather than logical inferences drawn from the evidence." Miller v. Nassau County Civ. Servo Commn., 85 A.D.3d 745, 746 (2d Dep't 2011); see also Gomez, supra, 67 A.D.3d at 966 (affirming grant of 28 4668017.10 CPLR 4401 motion at close plaintiffs case where Hthe record [was] devoid of any competent evidence tending to establish that the defendant was in any way connected with the [cause of the accident]" and ~''the jury would have been required to engage in impermissible speculation in order to find in the plaintiff s favor"); Broder v. MacNeil, 232 A.D.2d 163, 166 (1 st Oep't 1996) C'Having failed to prove a prima facie case by other than pure speculation, plaintiffs provided no basis for a verdict in their favor against these defendants, and the case should have been dismissed without going to the jury."). Similarly, this Court, a]ong with many other New York courts, have long recognized that a finding of proximate cause cannot be premised upon mere speculation alone, and that a directed verdict is therefore appropriate when such speculation is the only evidence put forth by a plaintiff. 5 See Clinger v. New York City Tr. Auth., 85 N.Y.2d 957, 959 (1995) (holding that plaintiff's claim should be dismissed as a matter of law where the only evidence on the issue of causation was 5 See also Alabre v. Kings Flatland Car Care Ctr .. Inc., 84 A.D. 3d 1286, 1287 (2d Dep't 201 t) ("'[A] plaintiffs 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.") (citation omitted); Patrick v. Costco Wholesale Corp., 77 A.D.3d 810, 810 (2d Dep'1 2010) C'ln a slip-and-fall case, a plaintiff s inability to identify the cause 0 f the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiffs injuries would be based on speculation."); Santiago v. Ciry of New York, 61 A.D. 3d 574, 575 (1 st Dep't 2009) (affirming grant of summary judgment where ""any finding of proximate cause would be inlpemlissibty speculative"); Flores v. City of New York, 29 A.D. 3d 356, 358-59 (1st Dep't 2006) (defendant entitled to summary judgment where plaintiff who fell in an intersection could not prove that defendant ~ s negligence was the proximate cause of the accident., and finding of proximate cause could not be based on plaintiff s speculation); Robinson v. City of New York, 18 A.D.3d 255., 256 (l st Dep"t 2005) (same). 29 4668017.10 speculation); Manley v. New York Tel. Co., 303 N.Y. 18,25 (1951) (affirming trial court's grant of directed verdict, and stating that "[w]hile the actual sequence of events may be established by inference, the circumstances must be such as to indicate negligence, and there must be more than mere speculation, guess or surmise .... ") (citation omitted); Artessa v. City a/Utica, 23 A.D.3d 1148, 1148- 49 (4th Dep't 2005) (affirming grant ofCPLR 4401 motion at close ofplaintiffs evidence); McCloud v. Marcantonio, 106 A.D.2d 493,495 (2d Dep't 1984) (affirming dismissal pursuant to CPLR 4401 where "there was no evidence that [defendant's] conduct was a proximate cause of the accident."). Siegel, supra, is particularly relevant here. In that case, the plaintiff was injured when he stepped into a Hsinkhole" while crossing an intersection. 86 A.D.3d at 453. He sued the City and a contractor who had previously performed work in the area where he fell, claiming negligent maintenance of the roadway. ld. At his deposition, the plaintiff circled the location of his fall on a photograph. Id. The defendant company who had installed conduit in the area testified at a deposition that the purported defect in the roadway, which had allegedly caused the plaintiffs accident, could have been caused by Con Edison utilities under the road\vay \vhich may have disturbed the sub base. Id. at 453-54. Another defendant testified that there had been a water main leak at the intersection four months prior to the plaintiff s accident, which might have led to 30 4668017.10 the ('''sink hole" in the road which plaintiff claimed to be the cause of the accident. ld. at 454. The motion court granted summary judgment dismissing the complaint. In affirming the motion court, the First Department recognized that there were two other possible causes of the accident other than the City or contractor's failure to maintain the roadway: (i) Con Edison utilities that ran under the purported defect, or (ij) the water main leak four months prior to the date of the plaintiff s accident. ld. at 454. The First Department also recognized that the plaintiff circling the area where he fell did not overcome what amounted only to the plaintiff s speculation as to what actual1y caused his accident. ("This basis for identification of the defect," the Court held, ""amounts to the type of "rank speculation' that general1y warrants summary judgment dismissal." ld. at 466. Significantly, the court went on to hold that "'[ e ]ven had the [plaintiff] positively identified the "sink hole' as the defect that caused him to fall, he nevertheless failed, in opposition to defendants' summary judgment motions, to raise a triable issue of fact as to whether defendants caused or created the defect." [d. (citing Zuckerman v. City of New York, 49 N.Y.2d 557 (1980». This is precisely the case here: Plaintiff-Appellant provided nothing more than his o,,,n speculation as to ho,,, JJC's construction ,,,ork someho,,, created a greyish-white material, or as to how such material somehow came to be located in the area in which Plaintiff-Appellant slipped, outside the six ton concrete barrier 31 4668017.10 that demarcated JJC's worksite from the roadway. Nor does Plaintiff-Appellant's assertion that he was "very very" sure that the substance came from JJC's worksite raise the level of his testimony above speculation. (Br. at 22) Plaintiff-Appellant's professed certainty does not and cannot alter the fact that mere speculation - no matter how "sure" - is legally insufficient to support a finding of negligence. See Siegel, supra, 86 A.D.3d at 454-55; Castore v. Tutto Bene Rest. Inc., 77 A.D.3d 599, 599 (1st Dep't 2010) ("[I]t is well-settled that rank speculation is not a substitute for the evidentiary proof in admissible form that is required to establish the existence ofa triable question of material fact."); Acunia v. New York City Dept. of Educ., 68 A.D.3d 631, 631-32 (1 st Dep't 2009) ("Although a plaintiff bears no burden to identify precisely what caused his slip and fall, mere speculation about causation is inadequate to sustain the cause of action."). Here, Plaintiff-Appellant was unable to render sufficiently remote the possibility that the debris on which he slipped resulted from the brick pointing work, as Defendant-Respondents argued, so as to enable a trier of fact to reach a verdict against Defendant-Respondents. Thus, the Majority was correct to affirm the trial court's Order granting Defendant-Respondents' motion for a directed verdict. 32 4668017.10 POINT II PLAINTIFF-APPELLANT FAILED TO OFFER ANY CIRCUMSTANTIAL EVIDENCE THAT DEFENDANT-RESPONDENTS CAUSED HIS ACCIDENT Nor is the propriety of the Maj ority' s analysis in any way altered by Plaintiff-Appellant's argument that "circumstantial evidence" presented at trial was sufficient to support a jury finding of liability. (Br. at 28-36) While Plaintiff- Appellant is correct that, in certain circumstances, "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. '" Oettinger, supra, 15 A.D.3d at 639 (citations omitted) (emphasis added). Here, Plaintiff-Appellant's claimed "circumstantial evidence" again amounts to nothing more than speculation as to the proximate cause of his accident, and the Majority was correct in upholding the trial court's granting of a directed verdict in Defendant-Respondents' favor. "[I]n a case based on circumstantia1 evidence, causes other than the defendant's negligence must be rendered sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence and not upon speculation." Michel v. Gressier, 298 A.D.2d 507, 508 (2d Dep't 2002); see also Murray v. State, 38 N.Y.2d 782, 784 (1975) (affirming dismissal of claims where plaintiff s argument that defendant's negligence was a 33 4668017.10 substantial factor in causing plaintiffs injury served "40nly to invite impermissible speculation"}; Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435 (2d Dep't 2006) (where plaintiff testified at deposition that she "'slipped on some kind of debris," holding that although proximate cause can be established in absence of direct evidence of causation and may be inferred from facts and circumstances underlying injury, mere speculation as to cause of fall where there can be many causes is fatal to cause of action); Fernandes v. Allstate Ins. Co., 305 A.D.2d 1065, 1066 (4th Dep't 2003) (affirming grant of directed verdict at close of plaintiffs case, and stating that H[ w ]hen the precise cause of a happening is left to conjecture and nlay be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then [a] plaintiff is not entitled to recover and the evidence should not be submitted to the jury.") (quotation omitted). Moreover, [w]hile plaintiff s proof need not exclude every other possible cause of the accident, it "must render those other causes sufficiently "remote' or 'technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence." In short, plaintiff must prove "that it was 'more likely' or 'more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency." Holliday v. Hudson Armored Car & Courier Serv., Inc., 301 A.D.2d 392, 396 (1st Dep't 2003) (quoting Gayle, supra, 92 N.Y.2d at 937) (emphasis added). 34 4668017.10 Here, the only ""circumstantial evidence" to which Plaintiff-Appellant alludes - other than the speculative testimony of Mr. Montas, which, as discussed above, is legally insufficient - is the suggestion that "plaintiff had obtained a building permit issued to the building across the street to perform work on the building's fa~ade several months after JJC had already vacated the worksite in November 1999." (Br. at 34-35) However, the trial transcript and record to which Plaintiff-Appellant cites clearly demonstrates there was no such permit ever proffered, much less offered in evidence. (A 782-83) This phanton1 permit could not possibly serve as a basis for Plaintiff-Appellant to meet his burden of proof: to show that Defendant-Respondents' explanation for the accident - that the substance on which Plaintiff-Appellant slipped was dross from the pointing project on the adjacent building - was sufficiently remote or technical so as to allow a jury to find in Plaintiff-Appellant's favor. By improperly raising this purported permit in his briefing to this Court, Plaintiff-Appellant is essentially asking this Court to engage in even further speculation: speculation as to what this permit, which was never even offered in evidence, might have said, and speculation as to whether this non-existent permit would have supported or contradicted any testimony that was actually presented at trial. 6 6 Plaintiff-Appellant cites to two Court of Appeals cases in support of his argument that circumstantial evidence is sufficient to support his negligence claim, but both cases are factually distinct from the case at hand. (Br. at 30-31) In Ingersoll v. Liberty Bank a/Buffalo, 278 N.Y. 1 35 4668017.10 As additional support for his argument that he presented sufficient circumstantial evidence at trial to substantiate a prima facie case of negligence, Plaintiff-Appellant argues that his proffered explanation for the cause of accident, that JJC's concrete work created the material on which he slipped, is more likely [than the pointing project] because there is undisputed testimony that on the day of the accident, JJC was excavating and chopping concrete near the accident location, and there was nothing but speculation to support defendants' argument that there was brick pointing work being performed on the day of the accident."(Br. at 35) Contrary to this unsubstantiated contention, however, testimony from Mr. Zanfardino and evidence from JJC's daily work logs established that any of JJC's work that even involved concrete and that occurred near the time of the accident took place nowhere near the scene of Plaintiff-Appellant' s accident. (A 759, 784- 85, 87-91, 908-12) (1938), the defendant argued that the plaintiff's fall could have been caused by a heart attack, rather than a broken tread on a stairway. as clain1ed by the plaintiff. This Court held that the mere existence of this possibility was not enough to defeat plaintiff's claim. [mportantly, however" the Court also emphasized that '-although the explanation of the facts offered by the defendant is a possible one, it is of remote probability.~' ld at 6 (emphasis added). Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663,670 (1991), also cited by Plaintiff-Appellant on this issue, did not even involve the question of whether the plaintiff had adequately stated a prima facie case 0 f negligence, but rather whether plaintiff had presented sufficient evidence to support an award for the decedent ~ s conscious pain and suffering. in that case, while the defendant had offered an alternative explanation for plaintiff's injuries that might have barred such an award, that explanation had "no support in the medical testimony or anywhere else in the record." ld This stands in stark contrast to the facts presented at this trial, which established that the pointing project was not only a possible cause of the accident, but more likely the probable cause. Plaintiff-Appellant simply did not, and stil1 does not, point to any circumstantial evidence that renders this alternative explanation for his accident ""remote." 36 4668017.10 The mere remote possibility that Plaintiff-Appellant's accident occurred as a result of some negligence of Defendant-Respondents does not constitute "circumstantial evidence." It is, rather, the same type of speculation and suggestion that New York courts have repeatedly held not to amount to competent evidence sufficient to raise a triable issue of fact. Here, in the face of uncontradicted testimony from JJC and the City that the greyish-white material on which Plaintiff-Appellant slipped came from pointing work being performed on the adjacent building, and not from any work that JJC did in connection with the project, Plaintiff-Appellant's 44circumstantial" evidence simply was insufficient to be considered by a jury. As the trial court pointed out, and as echoed by the Majority in its affirmance: "Indeed the case was tried almost as a res ipsa loquitur case. However, the Plaintiffs evidence was much more suggestion that proof regarding the source of the sand." (A 7a, 927) The Majority was therefore entirely correct to recognize that a directed verdict in Defendant-Respondents' favor was appropriate, as 44any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation." (A929) 37 4668017.10 POINT III THE TRIAL COURT DID NOT ENGAGE IN IMPROPER CREDIBILITY DETERMINATIONS AND THE APPELLATE DIVISION WAS CORRECT IN AFFIRMING THE GRANTING OF A DIRECTED VERDICT Plaintiff-Appellant argues that the trial court improperly engaged in an assessment of the credibility of the witnesses, which should have been left for the jury to resolve. (Br. at 22) The Dissent echoed this argument that "[t]he trial court deprived plaintiff of his right have this case decided by a jury by usurping the jury's function and purporting to resolve, as issues of law, questions of credibility and issues of fact." (A939 (citations omitted)) Both Plaintiff-Appellant and the Dissent, however, overlook an important detail in their analysis: a court does not, because it cannot, engage in impermissible credibility determinations when the only evidence of liability presented by a plaintiff, as here, consists of speculation. J.E. v. Beth Isr. Hasp., 295 A.D.2d 281,284 (1st Dep't 2002) (court did not engage in impermissible credibility determinations where any inference as to liability would have been "speculative at best ... regardless of how credible plaintiff may be.,,).7 7 In a recent 4-3 decision, Vega v. Restani Constr. Corp., 18 N.Y.3d 499 (2012), this Court recognized that it is not the function of a court deciding a summary judgment motion to make credibility determinations. The facts and issues of Vega, however, are entirely distinct from those involved here. Unlike this case, the defendant in Vega, in support of its tnotion for summary judgment simply denied that it created the condition that caused the plaintiff s injury, even though it had been working in the same area as the accident site, and offered no alternative explanation as to the cause of the condition. The plaintiff, however, in opposition to summary judgment submitted competent testimony that the defendant company had in fact created the condition that caused the plaintiff s injury. Under these circumstances, the majority of this Court affirmed the denial of summary judgment. In the present case, after a ful1 trial Plaintiff- 38 4668017.10 Here, the trial court did not make any detennination as to Plaintiff- Appellant's credibility; to the contrary, the trial court merely recognized that Plaintiff-Appellant could only speculate as to the source of the substance on which he slipped, and that such speculation did not constitute competent evidence. This was also recognized by the Majority: Contrary to the dissent's vi ew, the trial court did not improperly make credibility determinations or decide factual issues when it granted defendants' motions. Rather, it correctly determined that plaintiff's self- serving testimony that JJC's concrete-chopping activities were the source of the greyish-white sand in the street on which he slipped was too speculative to raise an issue of fact. (A92 7) Nor did the trial court or the Majority usurp the jury's role by purporting to resolve issues of fact, or improperly draw favorable inferences from the facts in favor of Defendant-Respondents, as claimed by the Dissent.8 (A939-40) As the Appellant's evidence was pure speculation. Furthermore, the Court's decision in Vega turned on the fact that the defendant as the movant for summary judgment, failed to meet its burden of demonstrating the absence of any material issues 0 f fact. [n the present case, it is Plaintiff- Appellant who had, and failed, to meet his burden of establishing a prima facie case of negligence by demonstrating that it was conduct of Defendant-Respondents, rather than the unrelated masonry pointing project, that was the proximate cause of his injury. 8 The cases cited by the Dissent in support of this argument are readily distinguishable. In Cohen v. Hallmark Cards. Inc., 45 N. Y.2d 493, 499 (1978), the Court held that a directed verdict on the issue of the defendant's knowledge, as required for an award of punitive damages, was inappropriate where the plaintiffs had presented evidence that they had provided defendant with notice of the offending conduct on a ce11ain date. The Cour1' s opinion has no relation to the standard of evidence necessary to support allegations of negligence involved in the present action, where Plaintiff-Appellant has provided no evidence other than rank speculation as to the cause of his injuries. See also Middleton v. Whitridge, 213 N.Y. 499, 513-14 (1915) (evidence from medical experts raised question of fact as to whether defendanf s conduct was the proximate cause of injury); Colozzo v. LoVece, 144 A.D.2d 617,618 (2d Dep't 1988) (in medical malpractice action, plaintiff presented evidence from two medical experts regarding the 39 4668017.10 trial court and the Majority correctly recognized, Plaintiff-Appellant's "'evidence" at trial consisted of "'mere suggestion" or "'speculation," rather than proof, regarding the source of the material on which Plaintiff-Appellant testified he slipped. And, as both the trial court and Majority in its affirmance pointed out, Defendant-Respondents presented uncontradicted evidence of a pointing project occurring simultaneously with JJC's construction project that provided an alternative probable explanation for the debris on which Plaintiff-Appellant slipped. (A 794-97) This evidence was supported by the testimony of Plaintiff- Appellant's own witness, who had personally observed this ongoing pointing project on a building adjacent to the location of Plaintiff-Appellant'S accident. (A541-53) Defendant-Respondents' evidence can hardly be characterized as '4self- serving," as the Dissent claims, when it was in fact corroborated by Plaintiff- Appellant's own witness. As this Court has expressly held, where there are two possible causes of an accident, for only one of which a defendant is responsible, it is the plaintiff's burden to render the other explanation "sufficiently' remote' or 'technical '" so as to allovv' a jury to base its decision on reasonable inferences dra\vn from the evidence, rather than pure speculation. Gayle, supra, 92 N.Y.2d at 937 (quoting proximate cause of plaintiffs injury). 40 4668017.10 Schneider v. Kings Highway Hosp. etr., 67 N.Y.2d 743, 744 (1986». Plaintiff- Appellant did not meet this burden. POINT IV THE DISSENT MISCHARACTERIZED EVIDENCE PRESENTED AT TRIAL AND MISAPPLIED ESTABLISHED NEW YORK PRECEDENT Ignoring the central issue of whether Plaintiff-Appellant had met his initial burden of substantiating even a prima facie case of negligence sufficient to be determined by a jury a critical threshold issue which both the trial court and the Majority recognized - the Dissent instead incorrectly posited that [t ]he dispositive issue in this matter is whether the sandy or gritty substance on which plaintiff slipped was the byproduct of the concrete-cutting or concrete-removal operations undertaken by the City's contractor, defendant JJC, as plaintiff alleges, or the cleaning and pointing of brickwork being performed by another, unidentified, contractor at a nearby building, as JJC maintains. (A931- 32) This analysis, however, incorrectly assumed that Plaintiff-Appellant had presented any competent evidence sufficient to even raise a triable issue of fact, which, as a matter of law, he did not. A. The Dissent Improperly Characterized Plaintiff-Appellant's Speculation As Evidence The Dissent argued that a directed verdict \vas inappropriate because" [t ]he jurors could reasonably have credited the testimony of plaintiff and his cousin, based on their direct observations, that JJe's concrete-cutting activities were the 41 4668017.10 source of the sandy debris." (A941 (emphasis added)) However, Plaintiff- Appellant's testimony that the greyish-white substance on which he slipped came from JJC's construction work was not based on direct observation. In fact, Plaintiff-Appellant (and his cousin) testified only that he had observed JJC use "big machines" during the course of its work; he did not, because he could not, testify that such machines were used on the day of or in the days preceding his accident, or that they were used anywhere in the vicinity of the accident. (A57-59) The testimony of Plaintiff-Appellant and his cousin regarding the source of the debris was comprised solely of speculation and conjecture. As this Court has stated, "'if there is any principle of law that is too well settled to required extensive citation of authority, it is that a jury finding based on speculation is a nullity." Feblot v. New York Times Co., 32 N.Y.2d 486, 494 (1973). The Dissent was therefore incorrect to regard this testimony as evidence sufficient to alJow a reasonable jury to find in Plaintiff-Appellant's favor. See Robinson v. City of New York, 18 A.D.3d 255, 256 (1 st Dep't 2005) C'The speculative assertions by plaintiff are insufficient to raise a question of fact about whether the repair and excavation work performed by these defendants many months prior in the curb lanes, a\vay from the locations of plaintiff's fall as identified by plaintiff herself in photographs at her deposition, caused her injuries."). 42 4668017.10 Instead, and contrary to Plaintiff-Appellant's argument in his brief that the Majority ignored testimony that JJC had been excavating concrete near the scene of the accident near the time of the accident, daily work logs introduced at trial demonstrated that any concrete work being done in the days preceding the accident occurred far from the site of Mr. Montas' fall, in an area that was in fact not even visible in the photographs presented by Plaintiff-Appellant at trial. (A 759) Again, Plaintiff-Appellant's testimony that such concrete work resulted in the creation of the material on which he slipped is, as the Majority correctly concluded, nothing more than his own speculation. Such speculation cannot provide a legally sufficient basis from which to draw any inference of liability. The Dissent's attempt to distinguish Lynn, supra, a case relied on by the Majority, is unavailing. The Dissent focuses primarily on the fact that the plaintiff in Lynn had suffered from amnesia after her accident, and could not recall the specific circumstances of her accident, whereas Plaintiff-Appellant here does not suffer from amnesia. (A940-41) The Dissent's focus, however, ignores the fact that, just as the plaintiff in Lynn, Plaintiff-Appellant here ""relies on inferences as to causation which are based solely upon speculation." Lynn, supra, 2] 6 A.D.2d at 196. Even though Plaintiff-i1~ppel1ant might remember that he slipped and fell, he did not personally witness any conduct of JJC that created the greyish-white substance on which slipped. As the Court in Siegel, supra, held, the mere fact that 43 4668017.10 a plaintiff can recall and even circle on a photograph the location of his fall, does not amount to the plaintiff's identification of the cause of his fall. 9 All Plaintiff- Appellant could do was surmise that some vaguely described concrete work done by JJC, at some undefined time and location, could possibly have created a similar substance, and that this substance could have somehow traveled beyond the six ton concrete barrier demarcating the work site into the area where Plaintiff-Appellant slipped. This is the very definition of speculation, which, as recognized consistently by New York courts, is simply insufficient to substantiate a prima facie case of negligence. B. The Dissent Incorrectly Concluded That There Were Issues Of Fact To Be Determined By A Jury The Dissent also improperly concluded that Plaintiff-Appellant had raised an 9 The other authorities relied upon by the Dissent either support the Majority's affirmance of the trial court Order directing a verdict in Defendant-Respondents' favor, or are readily distinguishable from the facts at hand. For example, in Szczerbiak, supra, 90 N.Y.2d at 556-57, this Court affirmed the Appellate Division, which in tum had affirmed the trial court's dismissal of the plaintiffs' claims under CPLR 4401. Specifically, the Court recognized that "the Trial Judge was correct in not permitting the issue [of ""recklessness"] to go before the jury," where the plaintiffs failed to provide sufficient proof at trial to cause liability to attach to the defendants. Id. The other cases cited by the Dissent in discussing whether Plaintiff-AppeHant's speculative testimony provided sufficient evidence to present the case to a jury are entirely distinguishable. See Matter of Nowakowski, 2 N. Y.2d 618,622 (1957) (discussing proof required to establish a prima facie cause of action for fraud regarding a waiver and release of appellant's right of election to take against his deceased wife's will, where '''[t]he finding of fact in this case is supported not only by the presence of evidence to support the finding of fact, i. e., the waiver itself, adnlittedly executed by the appellant, but likewise by the absence of worthy evidence of overreaching."); Perez v. Andrews Plaza Hous. Assocs .. L.P., 88 A.D.3d 512 (lst Dep't 2009) (upholding jury verdict); Sweeney v. Bruckner Plaza Assocs., 57 A.D.3d 347, 348 (lst Dep't 2008) (reversing grant of directed verdict where plaintiff had demonstrated that defendants had violated the Administrative Code of the City of New York, and because "'[vJiolation of the Administrative Code or the Rules of the City of New York constitutes some evidence of negligence. '''). 44 4668017.10 issue of fact by testifying that he believed the substance on which he slipped came from JJC's concrete work, because Plaintiff-Appellant owned an "environmental construction company" and had performed interior demolition and renovation work. to (A938) As the Majority correctly recognized, however, the "construction experience" of both Plaintiff-Appellant and his cousin was limited to interior construction work performed with hand tools, and neither individual had personal experience working with concrete or performing roadwork, and neither had familiarity with pointing work. (A230, 260-65, 308, 928) The Dissent also mischaracterized the testimony of the City inspector, Mr. Duodo, as indicating that JJC was responsible for cleaning up debris outside JJC's worksite, regardless of whether it had been generated by JJC. While Mr. Duodo did provide some testimony to this effect, at trial, he also stated: Question: Answer: Answer: Okay. Now, when there is material outside the barrier, whatever kind of material, it's your practice to have the contractor clean it . h? up, fig t. Yes if --, * * * If the contractor is the cause. That is, if say, during working hours, the debris is left, we corne to visit the site for safety meetings and other things, we see something outside, lO In his brief, Plaintiff-Appellant similarly emphasizes his and his cousin's "construction experience" in an attempt to give credence to their speculative testimony. (Br. at 22) 45 4668017.10 which will constitute hazard or filthiness, then tell contractor. (A385 (emphasis added». This testimony was supported by JJC's job foreman Mr. Zanfardino, who testified that JJC was only responsible for cleaning up the worksite, and, more specifically, "anything behind the barrier and the fence." (A760) The Dissent also misstated or misconstrued evidence presented at trial regarding the existence of the pointing project on the building adjacent to the site of the accident that produced a greyish-white dross, and for which Defendant- Respondents were not responsible. Specifically, the Dissent incorrectly stated that Mr. Zanfardino was the only witness to testify that repointing work was actively being performed at the nearby building. In fact, the Dissent itself recognized that the City Inspector Mr. Duodo "further noted that during the time of plaintiff s fall, there was an ongoing pointing project on a nearby building, which was unrelated to the City'S and JJC's work." (A541-43, 934) Thus, as detailed above, the Dissent, in reaching its conclusion that there was an issue to be considered by a jury, relied on speculation, suggestion and surmise that is simply insufficient as a matter of law. The only evidence presented at trial that purported to link any work of JJC to the cause of Plaintiff-Appellant'S falJ - a greyish-white substance of unconfirmed origin - was Plaintiff-Appellant's own speculative testimony. Without any other competent evidence indicating that 46 4668017.10 Defendant-Respondents' negligence was the cause of Plaintiff-Appellant's injuries, the trial court was correct to grant a directed verdict in Defendant-Respondents' favor, and the First Department was correct to affirm that Order. POINT V PLAINTIFF-APPELLANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF NEGLIGENCE AGAINST DEFENDANT-RESPONDENT JJC, BECAUSE HE FAILED TO ESTABLISH THAT JJC OWED A DUTY TO PLAINTIFF-APPELLANT While the Dissent correctly notes that the trial court did not reach JJC's alternative argument that as an independent contractor it owed no duty to third parties - because reaching this argument was unnecessary once the trial court properly determined that Plaintiff-Appellant had failed to present any competent evidence indicating that any of Defendant-Respondents' conduct was the proximate cause of Plaintiff-Appellant's injuries the Dissent still argues that JJC could have been found liable either (i) on the ground that it was JJC that created the hazardous condition; or (ii) because JJC was responsible for cleaning up debris in the area where Plaintiff-Appellant fell, even if JJC did not create that debris. Yet this argument, which Plaintiff-Appellant does not even raise on this appeal, fails as a matter of law. In order to set forth a prima facie case of negligence, a plaintiff must establish: (i) the existence of a duty on defendant's part as to the plaintiff; (ii) a breach of this duty; and (iii) that such breach was a substantial cause of the 47 4668017.10 resulting injury. Merino v. New York City Transit Authority, 218 A.D.2d 451 (1st Dep't 1996), aff'd 89 N.Y.2d 824 (1996). Before it becomes appropriate for a jury to consider whether a defendant may be liable for negligence, the court first must make the threshold determination of whether the plaintiff, by introducing adequate evidence, has made out a case sufficient in law to support a favorable jury verdict. This Court has recognized that where, as here, proof of any essential element of a prima facie case of negligence falls short - such as the existence of a duty owed by a defendant to the plaintiff - the case should go no further. See Valdez v. City of New York, 18 N.Y.3d 69,84 (2011) (where plaintiffs' proof was insufficient to establish a duty of care, negligence claims should be dismissed for failure to establish a prima facie case). The evidence at trial clearly demonstrated that JJC owed no duty to Plaintiff- Appellant. Plaintiff-Appellant was not a party to the City contract, and as a non- contracting party, JJC owed no duty of care to him. Hernandez v. Pace Elevator, Inc., 69 A.D.3d 493, 494-95 (1 st Dep't 2010). Having no duty to Plaintiff- Appellant, lJC could not have breached any such duty, and per force, such breach could not have been a substantial factor causing Plaintiff-Appellant's injury. Even assuming, arguendo, that lJe \vas responsible for maintaining the area outside of the concrete barrier - which it was not - in order for there to be any liability on the part of JJC, there must be evidence that JJC had created or had 48 4668017.10 actual or constructive notice of a defective condition, or that JJC was negligent in creating or allowing that condition to exist, and that this negligence was a substantial factor in causing Plaintiff-Appellant's accident. As discussed in detail above, there was no competent evidence presented at trial demonstrating that JJC created the defective condition, because Plaintiff-Appellant could only speculate that JJC's work was in any way responsible for the creation of the material on which he slipped. Furthermore, the evidence presented at trial overwhelmingly indicated that JJC did not have notice of the dangerous condition that Plaintiff-Appellant claims caused his injury. The City inspector, Mr. Ouodo, testified that he never observed any dangerous condition where JJC was working, and never received any complaint, written or oral, regarding JJC's work. (ASS], 555, 558-59) Plaintiff- Appellant himself did not make any complaints of any dangerous condition. (A259-60) Nor was JJC ever advised that there was any condition which required any remediation by JJC. (A800-801) Plaintiff-Appellant also failed to demonstrate that JJC had -'constructive notice" of any defective condition. To constitute constructive notice, a defect must be visible a.'1d apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant to discover and remedy it. See Rivera v. 2160 Realty Co., L.L.C., 4 N.Y.3d 837, 838 (2005) (holding that case should be 49 4668017.10 dismissed where plaintiff "failed to raise a triable issue of fact on the issue of whether the landlord had constructive notice on any theory of a dangerous condition"); Simmons v. Metro. Life Ins. Co., 84 N.Y.2d 972,973-74 (1994); Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-38 (1986). Here, Plaintiff-Appellant failed to show actual or constructive notice of any dangerous condition which could be attributable to the negligence of llC in any way. At best, even by Plaintiff-Appellant's own admission, the condition of which he complained was a transient one. Since lJC had neither actual nor constructive notice, nor any duty to Plaintiff-Appellant to rectify the condition which allegedly caused Plaintiff-Appellant to slip, the claims against JJC were properly dismissed. See Mercer v. City of New York, 88 N.Y.2d 955, 956 (1996); Gordon, supra, 67 N. Y.2d at 836. And where a plaintiff fails to rebut a defendant's primafacie showing that it did not create or have actual or constructive notice of a defective condition, the doctrine of res ipse loquitur is inapplicable. Mayer v. New York City Transit Auth., 39 A.D.3d 349., 349 (1 st Dep't 2007). Where, as here, none of the necessary elements that may have given rise to a duty of care on the part of JJC owed to Plaintiff-Appellant were established, courts have uniformly held that the claims alleging negligence should be dismissed. See, e.g., Hernandez, supra, 69 50 4668017.10 A.D.3d at 495; Johnson v. Grand Union Co., 158 A.D.2d 51 7, 518 (2d Dep't 1990).11 POINT V] PROCEDURAL CONSIDERATIONS WARRANTED A DIRECTED VERDICT IN THIS ACTION While Plaintiff-Appellant and the Dissent both make much of general policy considerations counseling against the grant of a directed verdict at the close of evidence, this case presents an ideal example of when just such a procedure is appropriate. In the present case, at trial, Plaintiff-Appellant entirely failed to establish a prima facie case of negligence. Plaintiff-Appellant presented no competent evidence that JJC owed a duty to him, or that any conduct of Defendant- Respondents was the proximate cause of Plaintiff-Appellant's injuries. Plaintiff- Appellant's own speculation and suggestion were insufficient as a matter of law to establish Defendant-Respondents liability, and the Majority was therefore correct to affirm the trial court's grant ofa directed verdict in Defendant-Respondents' favor, and the trial court's refusal to send Plaintiff-Appellant's legally insufficient case to the jury . 11 Even the case cited by the Dissent, Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249 (1 st Dep't 1984), aff'd 64 N. Y.2d 670 (1984), similarly supports dismissal of Plaintiff- Appellant's claims here. In Lewis, the Court found '''the record palpably insufficient to have warranted the submission of the case to the jury," in part because '''there was no showing that the condition was created by the defendants nor anything to establish either actual or constructive notice .. a necessary element in plaintiff s prima facie case." ld. at 250-51 . 51 4668017.10 To hold otherwise would effectively eviscerate this Court's long-standing precedent holding that a plaintiff's mere speculation is insufficient as a matter of law to state a prima facie case of negligence. See Nussbaum v. Lacopo, 27 N.Y.2d 311,319 (1970) (affirming dismissal of complaint at close of plaintiff's case where "[t]o allow a jury to decide the issue would be to substitute surmise and speculation for reason."); see also Akerman v. City of New York, 226 A.D.2d 326, 327 (2d Dep't 1996) (affirming grant of defendant's motion pursuant to CPLR 440 I at the close of plaintiff's case where "the record is devoid of any evidence from which a jury could conclude, based on logical inferences to be drawn from the evidence and not speculation, that the defendant's negligence was a substantial cause of the events that produced [plaintiffs] injuries."); Trillo v. Gerry, 135 A.D.2d 625 (2d Dep't 1987) (affirming defendant's motion to dismiss pursuant to CPLR 4401 at close of evidence where 44[ w]hile the evidence established that there was physical contact between the plaintiff ... and the left side of defendant's vehicle toward the rear, there was no evidence that the defendant had committed any negligent acts. "). Without this important rule, any plaintiff would be able to put a case against any defendant before a jury, merely by speculating that the defendant's conduct somehow caused the plaintiffs injury. This is clearly not the law in New York, and nor should it be. 12 12 The remaining cases cited by the Dissent (and by Plaintiff-Appellant) are distinguishable. In 52 4668017.10 Notably, both the Dissent and Plaintiff-Appellant cite to Jacino v. Sugerman, 10 A.D.3d 593 (2d Dep't 2004), for the general proposition that entertaining motions for judgment as a matter of law after a jury verdict may be better practice than granting a directed verdict prior to presenting the case to the jury. (Br. at 20) Yet Jacino in fact evidences exactly why the trial court's grant of a directed verdict was appropriate. There, as here, the appellant had attempted to support her case with her own allegations that "could not have been based upon personal knowledge or observations" and constituted mere "speculation." The Court therefore held that the appellant had failed to present any competent evidence of negligence. Similar1y here, the only purported evidence supporting Plaintiff-Appellant's negligence claim against JJC was his own speculation that the debris came from JJC's construction work. Yet Plaintiff-Appellant did not witness the actual Rosario v. City of New York, 157 A.D.2d 467, 471-72 (1st Dep't 1990), the primary issue was not the cause of plaintiffs injury, but rather only whether a duty existed. Specifically, the plaintiff had presented expert testimony that the defendant had a safety standard calling for safety precautions that had not been installed, and the Court concluded that a rationa1 jury could have therefore determined that the defendant had a duty on the basis of its failure to comply with its own standard. In Vera v. Knolls Ambulance, 160 A.D.2d 494,495-96 (1 st Dep't 1990), the Court recognized that ajury could have rationally found for the plaintiff'"[e]ven if the jury did not credit plaintiffs testimony regarding decedent's ambulatory capability." Here, in contrast, Plaintiff-Appellant has failed to provide any evidence beyond his own speculation that llC created or was otherwise responsible for the material on which he slipped, and a jury could have only found in Plaintiff-Appellant's favor by inlproperly crediting this speculative testimony. In Matter of Austin v. Consilvio, 295 A.D.2d 244, 245-46 (I st Dep't 2002), in an action requesting petitioner's release from involuntary retention in a psychiatric facility, the Court found that a directed verdict in petitioner's favor was inappropriate where respondent had presented testimony from a doctor that supervised her treatment for a period of I8-months, and whose testimony was supported by the medical record. In the present case, however, Plaintiff- Appellant presented no corroborative evidence for his own speculation and suggestion. 53 4668017.10 creation of the material on which he slipped, nor did he have any relevant construction experience that would allow him to determine the source of the material. Just as in Jacino, this speculation simply does not constitute competent evidence sufficient to support the submission of a case to a jury. As such, the Majority reached the correct conclusion when it affirmed the trial court's Order granting Defendant-Respondents' motion for a directed verdict. CONCLUSION Based on the foregoing, the trial court was entirely correct in directing a verdict at the end of trial in favor of Defendant-Respondents and dismissing the claims in Plaintiff-Appellant's complaint, and the First Department was entirely correct in affirming the trial court's Order. DATED: June 14,2012 New York, New York Respectfully submitted, Attorneys for Defendant-Respondent JJC Construction Corporation 12 East 49th Street, 30th Floor New York, New York 10017 54