DeForte v. Greenwood Cemetery

Appellate Division of the Supreme Court of New York

DeForte v. Greenwood Cemetery

114 A.D.3d 718, 980 N.Y.S.2d 499

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 13, 2014

StatusPublished

Cited by5 cases

This text of 114 A.D.3d 718 (DeForte v. Greenwood Cemetery) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DeForte v. Greenwood Cemetery, 114 A.D.3d 718, 980 N.Y.S.2d 499 (N.Y. Ct. App. 2014).

Pincite

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lewis, J), dated September 21, 2012, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

The plaintiff Salvatore DeForte (hereinafter the injured plaintiff) allegedly sustained personal injuries when he fell on the defendant’s premises. The injured plaintiff, and his wife suing derivatively, commenced this action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that the injured plaintiff did not know what had caused him to fall. The Supreme Court denied the defendant’s motion.

In a premises liability case, a plaintiffs inability to identify the cause of the accident is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiffs injuries would be based on speculation (see Deputron v A & J Tours, Inc., 106 AD3d 944 [2013]; Laskowski v 525 Park Ave. Condominium, 93 AD3d 822 [2012]). Here, the defendant established its entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the injured plaintiff, which demonstrated that he could not identify the cause of his fall without resorting to speculation (see Capasso v Capasso, 84 AD3d 997 [2011]; Hartman v Mountain Val. Brew Pub, 301 AD2d 570 [2003]; Barretta v Trump Plaza Hotel & Casino, 278 AD2d 262 [2000]). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.

In light of our determination, it is not necessary to review the parties’ remaining contentions. Mastro, J.E, Rivera, Sgroi and Cohen, JJ., concur.

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In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lewis, J), dated September 21, 2012, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

The plaintiff Salvatore DeForte (hereinafter the injured plaintiff) allegedly sustained personal injuries when he fell on the defendant’s premises. The injured plaintiff, and his wife suing derivatively, commenced this action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that the injured plaintiff did not know what had caused him to fall. The Supreme Court denied the defendant’s motion.

In a premises liability case, a plaintiffs inability to identify the cause of the accident is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiffs injuries would be based on speculation (see Deputron v A & J Tours, Inc., 106 AD3d 944 [2013]; Laskowski v 525 Park Ave. Condominium, 93 AD3d 822 [2012]). Here, the defendant established its entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the injured plaintiff, which demonstrated that he could not identify the cause of his fall without resorting to speculation (see Capasso v Capasso, 84 AD3d 997 [2011]; Hartman v Mountain Val. Brew Pub, 301 AD2d 570 [2003]; Barretta v Trump Plaza Hotel & Casino, 278 AD2d 262 [2000]). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.

In light of our determination, it is not necessary to review the parties’ remaining contentions. Mastro, J.E, Rivera, Sgroi and Cohen, JJ., concur.

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Bluebook (online)

114 A.D.3d 718, 980 N.Y.S.2d 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deforte-v-greenwood-cemetery-nyappdiv-2014.

Opinion

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