Supreme Court of the State of New York Appellate Division: Second Judicial Department

 

 

 


D51126
Q/htr

 

 

 

 

 


          AD3d                                                                                     
   Argued - December 16, 2016

WILLIAM F. MASTRO, J.P. MARK C. DILLON
RUTH C. BALKIN JOSEPH J. MALTESE, JJ.

 

 

 

 

 

 

 

 

 

 


2016-05504                                                                                         
         DECISION & ORDER

Rosa Rivera, appellant, v 916 Peekskill Main Realty, Inc., et al., respondents.

(Index No. 61312/14)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Greenberg Law P.C., New York, NY (Raquel J. Greenberg of counsel), for appellant.

McManus Richter Adams & Apostolakos PLLC, New York, NY (Christopher D. Skoczen and Sonya Malhotra
of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the
Supreme Court, Westchester County (Ecker, J.), dated May 27, 2016, which granted the defendants’
motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action after she allegedly fell as she entered premises owned by the
defendant 916 Peekskill Main Realty, Inc., and leased by the defendant Main Street Food Center. The
plaintiff testified at her deposition that she fell on a carpet located adjacent to the entrance
door, but was unable to identify any defect in the carpet that caused her to fall. The defendants
moved for summary judgment dismissing the complaint, contending that the plaintiff did not know
what caused her to fall.  The Supreme Court granted the motion.

To impose liability upon a defendant for a plaintiff’s injuries, there must be evidence showing the
existence of a dangerous or defective 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 Giannotti v Hudson Val. Fed. Credit Union, 133 AD3d 711, 711-712; Winder v Executive
Cleaning Servs., LLC, 91 AD3d 865). “‘In a trip-and-fall 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
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RIVERA v 916 PEEKSKILL MAIN REALTY, INC.

 

 

 

any, proximately caused the plaintiff’s injuries would be based on speculation’” (Bryant v Loft
Bookstore Café, LLC, 138 AD3d 664, 665, quoting Rivera v J. Nazzaro Partnership, L.P., 122 AD3d
826, 827; see Viviano v Keycorp, 128 AD3d 811; DiLorenzo v S.I.J. Realty Co., LLC, 115 AD3d 701,
702).

Here, the defendants established, prima facie, that the plaintiff did not know what caused her to
fall and that it would be speculative to assume that the front entrance carpet, which the plaintiff
confirmed was laying flat on the interior floor before she stepped on it, caused her to fall (see
Giannotti v Hudson Val. Fed. Credit Union, 133 AD3d at 712; Winder v Executive Cleaning Servs.,
LLC, 91 AD3d at 866; Drago v DeLuccio, 79 AD3d 966; Penn v Fleet Bank, 12 AD3d 584). In opposition,
the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment
dismissing the complaint.

MASTRO, J.P., DILLON, BALKIN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino Clerk of the Court

 

 

 

 

 

 

 

 

 

 

 

 


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RIVERA v 916 PEEKSKILL MAIN REALTY, INC.