Goldfischer v. Great Atlantic & Pacific Tea Co.

63 A.D.3d 575, 880 N.Y.S.2d 485

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 2009
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered November 17, 2008, which, in a personal injury action for plaintiffs trip and fall in a supermarket owned and managed by defendants, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In opposition to defendants’ prima facie showing that plaintiff failed to identify the cause of her fall, plaintiff failed to raise a triable issue of fact. Unaware of what caused her fall, she merely surmised that it was caused by the bump in the rubber floor mat that she observed for the first time after she fell. Coplaintiff husband testified that he did not observe what seemed to be a crease in the mat until after his wife fell, and could not identify where the crease was on the mat or whether it was higher than one inch or “accurately describe it that specifically.” The failure to identify the condition that caused plaintiffs fall is fatal to plaintiffs’ claim (see Kwitny v Westchester Towers Owners Corp., 4:1 AD3d 495, 495-496 [2008]; Pena v Women’s Outreach Network, Inc., 35 AD3d 104, 109-111 [2006]). Concur—Tom, J.E, Friedman, Catterson, Moskowitz and Richter, JJ.