Opinion
2012-04-10
Rita L. LAWRENCE, respondent, v. Frank NORBERTO, Jr., et al., appellants, et al., defendants.
Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel), for appellants. Joseph C. Stroble, Sayville, N.Y., for respondent.
Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel), for appellants. Joseph C. Stroble, Sayville, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants Frank Norberto, Jr., Norberto Inc., “LMN” Inc., doing business as Norberto Pools, Inc., and Norberto Pools, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.), dated December 14, 2010, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In this action to recover damages for personal injuries allegedly sustained by the plaintiff when she slipped and fell on premises owned by the defendant Frank Norberto, Jr., the appellants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff was unable to identify what had caused her to fall. The Supreme Court denied that branch of the motion.
To impose liability on a defendant in a slip-and-fall case, there must be evidence that there was a dangerous condition and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774; Davis v. Rochdale Vil., Inc., 63 A.D.3d 870, 882 N.Y.S.2d 194). A plaintiff's inability to identify the cause of the fall is fatal to the action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation ( see Capasso v. Capasso, 84 A.D.3d 997, 923 N.Y.S.2d 199; Patrick v. Costco Wholesale Corp., 77 A.D.3d 810, 909 N.Y.S.2d 543; Louman v. Town of Greenburgh, 60 A.D.3d 915, 876 N.Y.S.2d 112; Hartman v. Mountain Val. Brew Pub, 301 A.D.2d 570, 754 N.Y.S.2d 31). Here, the appellants failed to meet their burden of demonstrating, prima facie, that the plaintiff was unable to identify the cause of her accident ( see Bernardo v. 444 Rte. 111, LLC, 83 A.D.3d 753, 921 N.Y.S.2d 274; Sotomayor v. Pafos Realty, LLC, 43 A.D.3d 905, 841 N.Y.S.2d 619; Boyd v. Rome Realty Leasing Ltd. Partnership, 21 A.D.3d 920, 801 N.Y.S.2d 340). Since the appellants failed to meet their initial burden, we need not consider the sufficiency of the plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).
Accordingly, the Supreme Court properly denied that branch of the appellants' motion which was for summary judgment dismissing the complaint insofar as asserted against them.