Opinion
2012-02-21
Margaret ALSTON, Plaintiff–Appellant, v. ZABAR'S & CO., INC., etc., et al., Defendants–Respondents.
Alexander J. Wulwick, New York, for appellant. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset (James V. Deegan of counsel), for respondents.
Alexander J. Wulwick, New York, for appellant. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset (James V. Deegan of counsel), for respondents.
ANDRIAS, J.P., SAXE, ACOSTA, FREEDMAN, RICHTER, JJ.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered September 2, 2010, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants met their initial burden to demonstrate their entitlement to judgment as a matter of law by submitting plaintiff's deposition testimony stating that she did not know what caused her fall and did not observe anything on the floor before or after the accident ( see Raghu v. New York City Hous. Auth., 72 A.D.3d 480, 482, 897 N.Y.S.2d 436 [2010]; Reed v. Piran Realty Corp., 30 A.D.3d 319, 320, 818 N.Y.S.2d 58 [2006], lv. denied 8 N.Y.3d 801, 828 N.Y.S.2d 292, 861 N.E.2d 108 [2007] ).
Plaintiff failed to meet her burden to raise a triable issue of fact. The affidavit by an expert engineer was insufficient to raise a question of fact as to whether the combination of the slope of the floor and the coefficient of friction on parts of the floor lacking anti-slip strips caused the accident, given that the expert failed to establish that plaintiff was walking on an area without the strips immediately prior to the accident ( see Sarmiento v. C & E Assoc., 40 A.D.3d 524, 526–527, 837 N.Y.S.2d 57 [2007]; Sanders v. Morris Hgts. Mews Assoc., 69 A.D.3d 432, 892 N.Y.S.2d 99 [2010] ). Moreover, the expert's affidavit failed to show that the condition of the accident site at the time of the examination was the same as at the time of the accident ( see Santiago v. United Artists Communications, 263 A.D.2d 407, 407–408, 693 N.Y.S.2d 44 [1999] ).