Smith v. Jesadan Meat Corp.

120 A.D.3d 1332, 991 N.Y.S.2d 805

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 2014
• Docket: 2013-01609
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated November 28, 2012, which granted the separate motions of the defendants Jesadan Meat Corp., doing business as Associated Supermarket, and Nostrand Associates, also known as Nostrand Assoc. Jed Issacs, Ftr., for summary judgment dismissing the complaint insofar as asserted against each of them.

Ordered that the order is affirmed, with one bill of costs.

“In a slip-and-fall case, a plaintiffs inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” (Patrick v Costco Wholesale Corp., 77 AD3d 810, 810 [2010]; see McFadden v 726 Liberty Corp., 89 AD3d 1067, 1068 [2011]; Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d 1286, 1287 [2011]). Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of her fall (see 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]). Accordingly, the Supreme Court correctly granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

The plaintiff’s remaining contention is not properly before this Court.

Dickerson, J.E, Leventhal, Austin and Hinds-Radix, JJ., concur.