Opinion
2012-04-24
Vincent KNUDSEN, etc., appellant, v. MAMARONECK POST NO. 90, DEPARTMENT OF NEW YORK—AMERICAN LEGION, INC., respondent.
Rosenberg, Minc, Falkoff & Wolff, LLP, New York, N.Y. (Robert H. Wolff of counsel), for appellant. Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Gregory S. Katz and Nicholas P. Hurzeler of counsel), for respondent.
Rosenberg, Minc, Falkoff & Wolff, LLP, New York, N.Y. (Robert H. Wolff of counsel), for appellant. Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Gregory S. Katz and Nicholas P. Hurzeler of counsel), for respondent.
In an action to recover damages for personal injuries and wrongful death, etc., the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Adler, J.), entered May 10, 2011, as granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff did not know what caused the plaintiff's decedent to fall on an interior staircase at the defendant's premises ( see Yefet v. Shalmoni, 81 A.D.3d 637, 915 N.Y.S.2d 866; Martone v. Shields, 71 A.D.3d 840, 840–841, 899 N.Y.S.2d 249; Hennington v. Ellington, 22 A.D.3d 721, 804 N.Y.S.2d 395; Tejada v. Jonas, 17 A.D.3d 448, 792 N.Y.S.2d 605).
In opposition, the plaintiff failed to raise a triable issue of fact ( see Ghany v. Hossain, 65 A.D.3d 517, 884 N.Y.S.2d 125). Contrary to the plaintiff's contention, the Noseworthy doctrine ( see Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744) does not apply in this case, since the defendant's knowledge as to the cause of the decedent's accident is no greater than that of the plaintiff ( see Zalot v. Zieba, 81 A.D.3d 935, 936, 917 N.Y.S.2d 285; Kuravskaya v. Samjo Realty Corp., 281 A.D.2d 518, 721 N.Y.S.2d 836; Gayle v. City of New York, 256 A.D.2d 541, 542, 682 N.Y.S.2d 426). The plaintiff alleged that the decedent would not have fallen down the staircase if the defendant had properly latched the boiler room door, or configured it so that it did not swing open over the steps. Additionally, the plaintiff's expert opined in an affidavit that the configuration of the door and staircase violated, among other things, a provision of the Executive Law. However, the plaintiff's evidence did not raise a triable issue of fact as to whether the decedent's fall was proximately caused by those allegedly unsafe conditions ( see Noel v. Starrett City, Inc., 89 A.D.3d 906, 932 N.Y.S.2d 727; Ghany v. Hossain, 65 A.D.3d at 517, 884 N.Y.S.2d 125; Guiterrez v. Iannacci, 43 A.D.3d 868, 841 N.Y.S.2d 377; Tejada v. Jonas, 17 A.D.3d 448, 792 N.Y.S.2d 605; Curran v. Esposito, 308 A.D.2d 428, 764 N.Y.S.2d 209; Birman v. Birman, 8 A.D.3d 219, 777 N.Y.S.2d 310; cf. Griffin v. Sadauskas, 14 A.D.3d 930, 787 N.Y.S.2d 721). “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” ( Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 478, 735 N.Y.S.2d 585; see Ghany v. Hossain, 65 A.D.3d 517, 884 N.Y.S.2d 125; Reiff v. Beechwood Browns Rd. Bldg. Corp., 54 A.D.3d 1015, 864 N.Y.S.2d 175; Hennington v. Ellington, 22 A.D.3d at 721–722, 804 N.Y.S.2d 395).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.