McFadden v. 726 Liberty Corp.

89 A.D.3d 1067, 933 N.Y.2d 617

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 2011
• Status: Published

Opinion

“ ‘[A] plaintiffs inability to identify the cause of the [subject] fall 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’ ” (Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d 1286, 1287 [2011], quoting Rajwan v 109-23 Owners Corp., 82 AD3d 1199, 1200 [2011]; see Capasso v Capasso, 84 AD3d 997, 998 [2011]; Patrick v Costco Wholesale Corp., 77 AD3d 810 [2010]). Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of his fall (see Capasso v Capasso, 84 AD3d at 998; Patrick v Costco Wholesale Corp., 77 AD3d at 811). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562-564 [1980]; McCord v Olympia & York Maiden Lane Co., 8 AD3d 634, 636 [2004]).

Accordingly, the Supreme Court correctly granted the defendant’s motion for summary judgment dismissing the complaint. Mastro, J.E, Florio, Lott and Cohen, JJ., concur.