Burke v. Umbaca

163 A.D.3d 618

76 N.Y.S.3d 835 (Mem)

Candice BURKE, appellant,

v.Vincent UMBACA, respondent.

2017–01501

Index No. 508501/14

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 5, 2018

July 11, 2018

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

McCabe, Collins, McGeough, Fowler, Levine & Nogan LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated January 19, 2017. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when she fell down the front steps of the defendant's home. After the accident, the plaintiff commenced this action to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Martino v. Patmar Props., Inc., 123 A.D.3d 890, 999 N.Y.S.2d 449 ; Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689 ; Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839, 941 N.Y.S.2d 211 ; Bloomfield v. Jericho Union Free School Dist., 80 A.D.3d 637, 638, 915 N.Y.S.2d 294 ; Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 598, 892 N.Y.S.2d 181 ). This burden can also be established by demonstrating, prima facie, that the plaintiff cannot identify the cause of his or her accident (see Touloupis v. Sears, Roebuck & Co., 155 A.D.3d 807, 63 N.Y.S.3d 518 ; Hahn v. Go Go Bus Tours, Inc., 144 A.D.3d 748, 749, 40 N.Y.S.3d 549 ; McRae v. Venuto, 136 A.D.3d 765, 24 N.Y.S.3d 745 ; Montemarano v. Sodexo, Inc., 121 A.D.3d 1059, 1060, 995 N.Y.S.2d 207 ; Izaguirre v. New York City Tr. Auth., 106 A.D.3d 878, 878, 966 N.Y.S.2d 122 ).

Here, when viewing the evidence in the light most favorable to the plaintiff, the evidence relied upon by the defendant in support of his motion, which included the plaintiff's deposition transcript, demonstrated the defendant's prima facie entitlement to judgment as a matter of law. The plaintiff's deposition testimony demonstrated that she was unable to identify the cause of her fall (see Razza v. LP Petroleum Corp., 153 A.D.3d 740, 741, 60 N.Y.S.3d 325 ; Amster v. Kromer, 150 A.D.3d 804, 804, 54 N.Y.S.3d 103 ; Hoovis v. Grand City 99 Cents Store, Inc., 146 A.D.3d 866, 866, 45 N.Y.S.3d 524 ; Hahn v. Go Go Bus Tours, Inc., 144 A.D.3d at 749, 40 N.Y.S.3d 549 ; Giordano v. Giordano, ...