Brown-Phifer v. Cross County Mall Multiplex

282 A.D.2d 564, 723 N.Y.S.2d 393, 2001 N.Y. App. Div. LEXIS 3842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered October 24, 2000, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

To impose liability upon the appellants, there must be evidence tending to show the existence of a dangerous or defective condition, and that the appellants either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time (see, Miller v Gimbel Bros., 262 NY 107; Bonilla v Starrett City, 270 AD2d 377; Patrick v Cho’s Fruit & Vegetables, 248 AD2d 692; Kuchman v Olympia & York, 238 AD2d 381). The appellants established their entitlement to summary judgment by showing that there was no evidence of a defective condition which caused the plaintiff to fall (see, Robinson v Lupo, 261 AD2d 525; Kuchman v Olympia & York, supra). In her deposition testimony, the plaintiff repeatedly stated that she did not know what caused her foot to get stuck on the carpet. Since a jury would be required to speculate as to the cause of the plaintiff’s fall, summary judgment should have been granted to the appellants (see, Robinson v Lupo, supra). Santucci, J. P., Altman, Luciano and H. Miller, JJ., concur.