Opinion
324 CA 15-01568.
04-29-2016
Rose RINALLO, Plaintiff–Respondent, v. ST. CASIMIR PARISH and Catholic Diocese of Buffalo, Defendants–Appellants.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Kevin E. Loftus of Counsel), for Defendants–Appellants. Andrews, Bernstein, Maranto & Nicotra, PLLC, Buffalo (Brian R. Kraemer of Counsel), for Plaintiff–Respondent.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Kevin E. Loftus of Counsel), for Defendants–Appellants.
Andrews, Bernstein, Maranto & Nicotra, PLLC, Buffalo (Brian R. Kraemer of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
Opinion
MEMORANDUM: Plaintiff commenced this action seeking damages for injuries she sustained when she allegedly tripped and fell on a crack in a step at defendant St. Casimir Parish, a church operated by defendant Catholic Diocese of Buffalo. Defendants moved for summary judgment dismissing the complaint, contending that plaintiff was unable to establish the cause of her fall without engaging in speculation. Defendants appeal from an order denying that motion, and we now affirm.
“ ‘In a slip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall’ without engaging in speculation” (Dixon v. Superior Discounts & Custom Muffler, 118 A.D.3d 1487, 1487, 988 N.Y.S.2d 817 ; see Altinel v. John's Farms, 113 A.D.3d 709, 709–710, 979 N.Y.S.2d 360 ). In a circumstantial evidence case, however, “[the] plaintiff is not required to exclude every other possible cause of the accident but defendant's negligence ..., [but the plaintiff's] proof must render those other causes sufficiently remote or technical to enable the jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” (Smart v. Zambito, 85 A.D.3d 1721, 1721, 926 N.Y.S.2d 245 [internal quotation marks omitted]; see Schneider v. Kings Hwy. Hosp. Ctr., 67 N.Y.2d 743, 744, 500 N.Y.S.2d 95, 490 N.E.2d 1221 ).
Here, plaintiff consistently testified that her shoe became caught on a crack in the step, which caused her to fall. Although there were no witnesses to the fall, and plaintiff could not remember seeing the crack at the time of the accident, she testified that the fall occurred in the immediate vicinity of a crack in the step, as revealed by a photograph in the record, “thereby rendering any other potential cause of [her] fall sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” (Swietlikowski v. Village of Herkimer, 132 A.D.3d 1406, 1407, 18 N.Y.S.3d 250 [internal quotation marks omitted]; see Nolan v. Onondaga County, 61 A.D.3d 1431, 1432, 876 N.Y.S.2d 825 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.