Bovee v. Posniewski Enters.

2022 NY Slip Op 03561

Ralph Bovee, Appellant, v. Posniewski Enterprises, Inc., et al., Doing Business as Lox of Bagels & Moor, Respondents.

No. 533574

Supreme Court of New York, Third Department

June 2, 2022

Calendar Date: April 19, 2022.

FitzGerald Morris Baker Firth, PC, Glens Falls (John D Aspland of counsel), for appellant.

Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for respondents.

Before: Lynch, J.P., Clark, Aarons, Colangelo and McShan, JJ.

McShan, J.

Appeal from an order of the Supreme Court (Crowell, J.), entered June 23, 2021 in Saratoga County, which granted defendants' motion for summary judgment dismissing the complaint.

Plaintiff commenced this negligence action seeking damages for injuries that he sustained when he tripped and fell in the parking lot of a store owned by defendants. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint on the basis that plaintiff was unable to identify the cause of his fall, there was no actual or constructive notice of the alleged dangerous condition and the defect was too trivial to be actionable. Finding that plaintiff's testimony regarding the cause of his fall was speculative, Supreme Court granted the motion. Plaintiff appeals, and we reverse.

Ordinarily, a defendant moving for summary judgment in a trip and fall case must establish that its property had been maintained in a reasonably safe condition and that it neither created nor had actual or constructive notice of the dangerous condition that caused the plaintiff's fall (see Farrell v Ted's Fish Fry, Inc., 196 A.D.3d 893, 893 [2021]; Mister v Mister, 188 A.D.3d 1334, 1334 [2020]). "[A] defendant can also demonstrate entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation" (Mulligan v R & D Props. of N.Y. Inc., 162 A.D.3d 1301, 1301 [2018] [internal quotation marks and citations omitted]; accord Farrell v Ted's Fish Fry, 196 A.D.3d at 894; see Smith v Maloney, 91 A.D.3d 1259, 1259 [2012]). "However, even when a plaintiff is unable to identify the cause of a fall with certainty, a case of negligence based wholly on circumstantial evidence may be established if the plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred" (Brumm v St. Paul's Evangelical Lutheran Church, 143 A.D.3d 1224, 1227 [2016] [internal quotation marks, brackets and citations omitted]; see Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 550 [1998]; Rivera v Waterview Towers, Inc., 181 A.D.3d 844, 846 [2020]).

Plaintiff testified that, on the day of the incident, the weather was clear and there was no snow or debris on the surface of the parking lot. He had parked his car in the parking lot and was approaching the front door of the store when his foot suddenly "hit something along the pavement and... stopped," causing him to fall to the ground. An individual who was walking behind plaintiff came to his aid, helping plaintiff up off the ground and assisting him back to his vehicle. At the time of his fall, plaintiff did not look at the ground to determine the cause. However, he recalled that, after being helped back to his vehicle, he looked back and noticed a cracked area of the pavement where he had fallen. Plaintiff was shown photographs of the parking lot and identified the location of his fall by circling in one of the photographs an uneven area of the pavement with two cracks in close proximity to one another. Upon further questioning, plaintiff was unable to identify which of the two cracks caused the fall, but repeatedly testified that he knew it was one of those two cracks based upon where he landed when he fell.

Viewing the evidence in the light most favorable to plaintiff, as we must, and affording him the benefit of every available inference (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 [2015]; McEleney v Riverview Assets, LLC, 201 A.D.3d 1159, 1160 [2022]), we conclude that defendants failed to establish as a matter of law that the cause of plaintiff's fall was speculative. Although plaintiff's statements were not without some inconsistencies, he was steadfast in his testimony that he tripped on one of the two identified cracks in the pavement of the parking lot. Despite Supreme Court's suggestion to the contrary, plaintiff was not required to state for certain which particular crack caused him to fall in order to withstand summary judgment (see Brumm v St. Paul's Evangelical Lutheran Church, 143 A.D.3d at 1227; Kovach v PJA, LLC, 128 A.D.3d 445, 445 [2015]; DiGiantomasso v City of New York, 55 A.D.3d 502, 502 [2008]; Cherry v Daytop Vil., Inc., 41 A.D.3d 130, 131 [2007]). From plaintiff's testimony, a jury could rationally infer that one of the two cracks in this area of the pavement was the cause of his fall without being forced to resort to mere speculation and surmise (see Martinez v City of New York, 190 A.D.3d 561, 561 [2021]; Brumm v St. Paul's Evangelical Lutheran Church, 143 A.D.3d at 1227; Dixon v Superior Discounts & Custom Muffler, 118 A.D.3d 1487, 1488 [2014]; Seelinger v Town of Middletown, 79 A.D.3d 1227, 1229-1230 [2010]; Timmins v Benjamin, 77 A.D.3d 1254, 1256 [2010]; Cherry v Daytop Vil., Inc., 41 A.D.3d at 131). Accordingly, Supreme Court erred in granting summary judgment on this issue.

Defendants likewise failed to meet their burden of demonstrating as a matter of law that they did not have actual or constructive notice of the alleged dangerous condition. Their submissions included the affidavit and examination before trial testimony of Mark Posniewski, the store's co-owner. Posniewski testified that he has maintained the store's parking lot since 2002 and that there were no prior accidents or complaints regarding its condition. He also explained, however, that the Town of Queensbury had "dug up" the parking lot approximately 10 years earlier in order to install underground power lines. Posniewski testified that the "cuts" in pavement depicted in the various photographs, including those identified by plaintiff as the potential cause of his fall, were from the work performed by the Town. He also expressed an unawareness as to whether anyone from the Town ever came to inspect the work and testified that the parking lot has not since been repaved or resurfaced. When asked if he had a plan to even out the surface of the parking lot, Posniewski responded that it costs "a lot of money" to pave and that, in his view, there was nothing wrong with the parking lot that would require him to take steps to fix it. Considering Posniewski's testimony and the photographs submitted on the motion, we find that defendants failed to eliminate triable issues of fact as to whether the defect that allegedly caused plaintiff's fall was visible and apparent and existed for a sufficient length of time prior to the accident to permit defendants to have discovered and remedied it (see Hutchinson v Sheridan Hill House Corp., 26 N.Y.3d 66, 83 [2015]; Mister v Mister, 188 A.D.3d at 1336; Barber v Sorce, 173 A.D.3d 1670, 1671 [2019]; see generally Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837-838 [1986]).

Defendants assert, as an additional alternative ground for affirmance that dismissal of the complaint is warranted because the alleged defect is nonactionable as a matter of law. "While property owners are not held liable for trivial...