Perrelliv.Evangelista

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial DepartmentMar 13, 2019
93 N.Y.S.3d 867 (N.Y. App. Div. 2019)
93 N.Y.S.3d 867170 A.D.3d 9052019 N.Y. Slip Op. 1807

2016–11334 Index No. 9821/14

03-13-2019

Anthony M. PERRELLI, etc., Respondent, v. Armandoe EVANGELISTA, et al., Appellants.

Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, N.Y. (Joshua H. Stern and John Nicolini of counsel), for appellants. Sacco & Fillas, LLP, Astoria, N.Y. (Albert R. Matuza, Jr., of counsel), for respondent.


Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, N.Y. (Joshua H. Stern and John Nicolini of counsel), for appellants.

Sacco & Fillas, LLP, Astoria, N.Y. (Albert R. Matuza, Jr., of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDERORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The plaintiff's decedent (hereinafter the decedent) fell on the driveway of premises owned by the defendants, from whom the decedent rented an apartment. The decedent sustained injuries in the accident which ultimately caused his death. The plaintiff, as administrator of the decedent's estate, commenced this action, inter alia, to recover damages for wrongful death, alleging that the defendants negligently maintained the driveway. Thereafter, the defendants moved for summary judgment dismissing the complaint, asserting, inter alia, that the plaintiff had failed to sufficiently identify the cause of the decedent's fall. The plaintiff opposed the motion, asserting, among other things, that the Noseworthy doctrine (see Noseworthy v. City of New York , 298 N.Y. 76, 80 N.E.2d 744 ) should apply to the circumstances of this case to impose a lighter burden of persuasion on the plaintiff, since the decedent was not alive to testify as to the cause of his fall. With his opposition papers, the plaintiff submitted an expert affidavit, in which the expert identified allegedly dangerous conditions affecting the driveway. The plaintiff also submitted the affidavit of the decedent's friend, who was present with the decedent the evening of the accident but did not witness the decedent's fall. The Supreme Court denied the defendants' motion. The defendants appeal.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the plaintiff could not identify what caused the decedent to fall (see Baterna v. Maimonides Med. Ctr. , 139 A.D.3d 653, 653, 31 N.Y.S.3d 544 ; O'Connor v. Metro Mgt. Dev., Inc. , 130 A.D.3d 698, 699–700, 15 N.Y.S.3d 59 ; Hod v. Orchard Fields, LLC , 111 A.D.3d 794, 794, 975 N.Y.S.2d 162 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Baldwin v. Windcrest Riverhead, LLC , 123 A.D.3d 859, 861, 997 N.Y.S.2d 750 ; Hod v. Orchard Fields, LLC , 111 A.D.3d at 795, 975 N.Y.S.2d 162 ; Zalot v. Zieba , 81 A.D.3d 935, 936, 917 N.Y.S.2d 285 ; Reiff v. Beechwood Browns Rd. Bldg. Corp. , 54 A.D.3d 1015, 1015–1016, 864 N.Y.S.2d 175 ; Denicola v. Costello , 44 A.D.3d 990, 990, 844 N.Y.S.2d 438 ; Teplitskaya v. 3096 Owners Corp. , 289 A.D.2d 477, 478, 735 N.Y.S.2d 585 ). Contrary to the plaintiff's contention, the Noseworthy doctrine does not apply to the circumstances of this case, since the defendants' knowledge concerning the cause of the decedent's accident is no greater than that of the plaintiff (see Hod v. Orchard Fields, LLC , 111 A.D.3d at 795, 975 N.Y.S.2d 162 ; Zalot v. Zieba , 81 A.D.3d at 936, 917 N.Y.S.2d 285 ; Aguilar v. Anthony , 80 A.D.3d 544, 545, 915 N.Y.S.2d 284 ). Even accepting the defects identified in the plaintiff's expert's affidavit, the plaintiff failed to raise a triable issue of fact as to whether the decedent's fall was proximately caused by those allegedly unsafe conditions (see Baldwin v. Windcrest Riverhead, LLC , 123 A.D.3d at 861, 997 N.Y.S.2d 750 ; Hod v. Orchard Fields, LLC , 111 A.D.3d at 795, 975 N.Y.S.2d 162 ; Reiff v. Beechwood Browns Rd. Bldg. Corp. , 54 A.D.3d at 1015–1016, 864 N.Y.S.2d 175 ; Denicola v. Costello , 44 A.D.3d at 990, 844 N.Y.S.2d 438 ). " ‘Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation’ " ( Hod v. Orchard Fields, LLC , 111 A.D.3d at 795, 975 N.Y.S.2d 162, quoting Teplitskaya v. 3096 Owners Corp. , 289 A.D.2d at 478, 735 N.Y.S.2d 585 ; see Zalot v. Zieba , 81 A.D.3d at 936, 917 N.Y.S.2d 285 ). Similarly, the affidavit of the decedent's friend, who found the decedent in the driveway but did not witness the accident, merely speculates as to the cause of the accident, and therefore does not raise a triable issue of fact (see Zalot v. Zieba , 81 A.D.3d at 936, 917 N.Y.S.2d 285 ; Teplitskaya v. 3096 Owners Corp. , 289 A.D.2d at 478, 735 N.Y.S.2d 585 ).

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.

SCHEINKMAN, P.J., LASALLE, BARROS and IANNACCI, JJ., concur.