Opinion
2017–00142 Index No. 63990/14
05-02-2018
Rhoda M. STOLLER, appellant, v. PURCHASE COMMUNITY, INC., respondent (and a third-party action).
Feldman, Kramer & Monaco, P.C., Hauppauge, N.Y. (Leonard B. Chipkin, Garden City, of counsel), for appellant. Gialleonardo, Gizzo & Rayhill, Elmsford, N.Y. (David M. Heller of counsel), for respondent.
Feldman, Kramer & Monaco, P.C., Hauppauge, N.Y. (Leonard B. Chipkin, Garden City, of counsel), for appellant.
Gialleonardo, Gizzo & Rayhill, Elmsford, N.Y. (David M. Heller of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Terry Jane Ruderman, J.), dated November 29, 2016. The order, insofar as appealed from, granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On August 6, 2013, the plaintiff fell from an exterior staircase on the defendant's property in Westchester. The plaintiff commenced this action against the defendant, alleging that she sustained personal injuries as a result of the fall. The defendant cross-moved, inter alia, for summary judgment dismissing the complaint, contending, among other things, that the plaintiff could not establish the element of causation. The Supreme Court granted that branch of the cross motion, and the plaintiff appeals.
The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty proximately caused injury to the plaintiff (see Merchants Mut. Ins. Co. v. Quality Signs of Middletown, 110 A.D.3d 1042, 1043, 973 N.Y.S.2d 787 ; Demshick v. Community Hous. Mgt. Corp., 34 A.D.3d 518, 519, 824 N.Y.S.2d 166 ). In a premises liability case, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation (see Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747 ; Rajwan v. 109–23 Owners Corp., 82 A.D.3d 1199, 1200, 919 N.Y.S.2d 385 ).
Here, the evidence submitted by the defendant in support of its cross motion, including the deposition transcripts of the plaintiff and surveillance footage of the plaintiff's fall, was sufficient to establish, prima facie, that the plaintiff did not know what had caused her to fall (see Amico v. Kasneci, 134 A.D.3d 969, 20 N.Y.S.3d 908 ; Rajwan v. 109–23 Owners Corp., 82 A.D.3d at 1200, 919 N.Y.S.2d 385 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Humphrey v. Merivil, 109 A.D.3d 792, 793, 971 N.Y.S.2d 211 ; Rajwan v. 109–23 Owners Corp., 82 A.D.3d at 1200, 919 N.Y.S.2d 385 ; Murphy v. New York City Tr. Auth., 73 A.D.3d 1143, 1144, 902 N.Y.S.2d 144 ).
Accordingly, the Supreme Court properly granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint.
LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.