At page 429 Plaintiff's failure to identify cause of fall as speculation24 citing casesinjuries, the defendant appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated January 14, 2003, which denied her motion for summary…
- Telchman v. RCPI Landmark Props., LLC, 151 A.D.3d 996 (N.Y. App. Div. 2d Dep't 2017).publishedThe defendants also established, prima facie, that the alleged improper length of the ice skates was not a proximate cause of the accident (see Curran v Esposito, 308 AD2d 428, 429 [2003]; see also Ash v City of New York, 109 AD3d 854, 855…
- Vojvodic v. City of New York, 148 A.D.3d 1086 (N.Y. App. Div. 2d Dep't 2017).publishedRather, it demonstrates that he is unable to identify the cause of his fall and any determination by the trier of fact as to causation would be based upon sheer speculation (see Ash v City of New York, 109 AD3d at 856 ; Curran v Esposito,…
- Blocker v. Filene's Basement 51-00540, 126 A.D.3d 744 (N.Y. App. Div. 2d Dep't 2015).publishedHere, Ragosta and the Filene’s defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that demonstrated that the plaintiff could not identify the cause of her fall without resorting to sp…
- Trapani v. Yonkers Racing Corp., 124 A.D.3d 628 (N.Y. App. Div. 2d Dep't 2015).publishedHere, the the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff could not identify the cause of her fall without resorting to speculation (see Rodriguez v 1790 Bro…
- Antelope v. Saint Aidan's Church, Inc., 110 A.D.3d 1020 (N.Y. App. Div. 2d Dep't 2013).published Hosp., 84 AD3d 1057, 1058 [2011]; Curran v Esposito, 308 AD2d 428, 429 [2003]; Blanco v Oliveri, 304 AD2d 599, 600 [2003]).
- Iwelu v. New York City Transit Auth., 90 A.D.3d 712 (N.Y. App. Div. 2d Dep't 2011).publishedAuth., 267 AD2d 201, 202 [1999]; Curran v Esposito, 308 AD2d 428, 429 [2003]).
- Ortiz-Tulla v. Federated Dep't Stores, Inc., 88 A.D.3d 669 (N.Y. App. Div. 2d Dep't 2011).publishedRealty Corp., 28 AD3d 434, 435 [2006]; Golba v City of New York, 27 AD3d 524 [2006]; Curran v Esposito, 308 AD2d 428, 429 [2003]; Lee v Rite Aid of N.Y., 261 AD2d 368, 368-369 [1999]; Pianforini v Kelties Bum Steer, 258 AD2d 634 , 635 [199…
- Revesz v. Carey, 86 A.D.3d 821 (N.Y. App. Div. 3d Dep't 2011).publishedMoreover, plaintiff never testified that it was too dark to make any observations of the area or that a lack of lighting caused her to fall (see Knickerbocker v Ulster Performing Arts Ctr., 74 AD3d 1526, 1528 [2010]; Curran v Esposito, 308…
- Lomonico v. Massapequa Pub. Schs., 84 A.D.3d 1033 (N.Y. App. Div. 2d Dep't 2011).publishedSchool Dist., 13 AD3d 968, 970 [2004] [internal quotation marks omitted]; see Corrado v Vath, 70 AD3d 624, 625 [2010]; Tejada v Jonas, 17 AD3d 448 [2005]; Curran v Esposito, 308 AD2d 428, 429 [2003]).
- He Shang Wang v. 82-90 Broadway Realty Corp., 82 A.D.3d 1158 (N.Y. App. Div. 2d Dep't 2011).publishedCorp., 54 AD3d 1015, 1015 [2008]; Curran v Esposito, 308 AD2d 428, 429 [2003]; see also Rodriguez v Cafaro, 17 AD3d 658, 658 [2005]; Tresgallo v Danica, 286 AD2d 326 [2001]).
Show 13 more citing cases
- Martone v. Shields, 71 A.D.3d 840 (N.Y. App. Div. 2d Dep't 2010).publishedCorp., 54 AD3d 1015 [2008]; Denicola v Costello, 44 AD3d 990 [2007]; Birman v Birman, 8 AD3d 219 [2004]; Curran v Esposito, 308 AD2d 428, 429 [2003]).
- Corrado v. Vath, 70 A.D.3d 624 (N.Y. App. Div. 2d Dep't 2010).publishedWithout more, the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation (see Curran v Esposito, 308 AD2d 428, 429 [2003]).
- Dalinedesroches v. Lazard, 70 A.D.3d 626 (N.Y. App. Div. 2d Dep't 2010).publishedThe defendant established her prima facie entitlement to judgment as a matter of law by submitting the plaintiffs deposition testimony, in which the plaintiff was unable to explain what caused her to trip and fall (see Curran v Esposito, 3…
- Morgan v. Windham Realty, LLC, 68 A.D.3d 828 (N.Y. App. Div. 2d Dep't 2009).publishedIn light of the insufficiency of the evidence submitted by the plaintiffs on the issue of causation, a trier of fact would be required “to base a finding of proximate cause upon nothing more than speculation” (Louman v Town of Greenburgh,…
- Bishop v. Marsh, 59 A.D.3d 483 (N.Y. App. Div. 2d Dep't 2009).publishedAlthough the plaintiff alleged that the lighting at the location of her fall was inadequate at the time of the incident, she neither testified at her deposition nor stated in her affidavit submitted in opposition to the summary judgment mo…
- DeSantis v. Lessing's, Inc., 46 A.D.3d 742 (N.Y. App. Div. 2d Dep't 2007).publishedThe defendant established its prima facie entitlement to judgment as a matter of law by submitting the plaintiffs deposition testimony, in which she was unable to explain what caused her to trip and fall (see Curran v Esposito, 308 AD2d 42…
- Bennett v. Robinson, 35 A.D.3d 643 (N.Y. App. Div. 2d Dep't 2006).publishedIn response, the plaintiffs failed to raise a triable issue of fact (see Curran v Esposito, 308 AD2d 428, 429 [2003]).
- Golba v. City of New York, 27 A.D.3d 524 (N.Y. App. Div. 2d Dep't 2006).publishedThe plaintiffs own deposition testimony that she did not know what caused her fall was fatal to her complaint because the trier of fact would be required to base its finding of proximate cause on pure speculation (see Curran v Esposito, 30…
- Leib v. Silo Restaurant, Inc., 26 A.D.3d 359 (N.Y. App. Div. 2d Dep't 2006).publishedContrary to the plaintiff’s contention, she failed to submit evidence sufficient to demonstrate that an alleged inadequate lighting condition was a proximate cause of the accident (see Curran v Esposito, 308 AD2d 428, 429 [2003]; Gordon v…
- Hennington v. Ellington, 22 A.D.3d 721 (N.Y. App. Div. 2d Dep't 2005).publishedThe defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff failed or was unable to identify the cause of her fall down the stairs of the defendants’ premises (see Tejada v Jo…
- Rodriguez v. Cafaro, 17 A.D.3d 658 (N.Y. App. Div. 2d Dep't 2005).publishedThe defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, the plaintiffs deposition testimony wherein the plaintiff admitted that he did not know the cause of his accident (see Curran…
- Henry v. Cobleskill-Richmondville Cent. Sch. Dist., 13 A.D.3d 968 (N.Y. App. Div. 3d Dep't 2004).publishedHere, defendants made a prima facie showing that the complaint should be dismissed because plaintiffs cannot establish what caused Henry to fall and injure himself, an omission that is fatal to their claims that some alleged defect in the…
- Romanowski v. Yahr, 5 A.D.3d 985 (N.Y. App. Div. 4th Dep't 2004).published In support of their summary judgment motion, defendants submitted the deposition testimony of plaintiff that she did not know what caused her to fall; that her foot did not slip; that she did not trip or stub her toe; and that she could no…
v.
Hedy Esposito
—In an action to recover damages for personal[*429] injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated January 14, 2003, which denied her motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff allegedly was injured when she tripped and fell down the interior staircase of the defendant’s home. In her complaint and bill of particulars, the plaintiff alleged that her fall was caused by, among other things, inadequate lighting and a tear in the carpeting on the staircase. The plaintiff’s deposition testimony, however, plainly reveals that she does not know what caused her to trip and fall.
The plaintiff testified that her foot became caught on something at the top of the staircase, but she did not know what it was. She could not remember which foot became caught; she thought it was her toe that became caught, although she testified that she was wearing slippers. The plaintiff could not explain exactly how or where her foot became caught. She also claimed that she heard that there was a tear in the carpeting, but she never saw it. The plaintiff testified that there was light coming from the guest bedroom when she went to descend the staircase. She never stated that she was unable to see and that she misstepped as a result (see Wright v South Nassau Communities Hosp., 254 AD2d 277, 278 [1998]). The evidence adduced here establishes nothing more than a possibility that the plaintiff’s fall was caused by the tear in the carpeting or the lack of adequate lighting (see Silva v Village Sq. of Penna, 251 AD2d 944, 945 [1998]; Dapp v Larson, 240 AD2d 918, 919 [1997]). The trier of fact would be required to base a finding of proximate cause upon nothing more than speculation (see Hartman v Mountain Val. Brew Pub, 301 AD2d 570 [2003]; Christopher v New York City Tr. Auth., 300 AD2d 336 [2002]; Brown-Phifer v Cross County Mall Multiplex, 282 AD2d 564 [2001]; Novoni v La Parma Corp., 278 AD2d 393 [2000]; Visconti v 110 Huntington Assoc., 272 AD2d 320, 321 [2000]; Penovich v Schoeck, 252 AD2d 799, 800 [1998]; Silva v Village Sq. of Penna, supra; Dapp v Larson, supra). Thus, the plaintiff’s own deposition testimony that she did not know what caused the accident is fatal to her complaint (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sanchez v City of New York, 305 AD2d 487 [2003]; Christopher v New York City Tr. Auth., supra; Bongiorno v Penske Auto. Ctr., 289 AD2d 520, 521 [2001]; Brown-Phifer v Cross County Mall Multiplex, supra; Barretta v Trump Plaza Hotel & Casino, [*430] 278 AD2d 262, 263 [2000]; Wright v South Nassau Communities Hosp., supra; Amadio v Pathmark Stores, 253 AD2d 834 [1998]; Dapp v Larson, supra). In opposition to the motion, the plaintiff did not sufficiently rebut this fatal lapse in her case (see Moody v Woolworth Co., 288 AD2d 446, 447 [2001]; Fargot v Pathmark Stores, 264 AD2d 708 [1999]; Robinson v Lupo, 261 AD2d 525 [1999]). Therefore, the Supreme Court erred in denying the defendant’s motion for summary judgment. Florio, J.P., Schmidt, Crane and Cozier, JJ., concur.