Deutsch v. Green Hills (USA), LLC

202 A.D.3d 909

163 N.Y.S.3d 213

Lilian DEUTSCH, appellant,

v.GREEN HILLS (USA), LLC, et al., defendants,LMS Properties NY, LLC, et al., respondents.

2019–07166

Index No. 505183/16

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

Argued—November 23, 2021

February 16, 2022

Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Melissa B. Ringel], of counsel), for appellant.

Morrison Mahoney, LLP, New York, NY (Demi Sophocleous of counsel), for respondents.

COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Paul Wooten, J.), dated April 17, 2019. The order granted the motion of the defendants LMS Properties NY, LLC, LMS Properties N.Y. II, LLC, and Madison Realty Capital, LP, for summary judgment dismissing the amended complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants LMS Properties NY, LLC, LMS Properties N.Y. II, LLC, and Madison Realty Capital, LP, which was for summary judgment dismissing the amended complaint insofar as asserted against the defendants LMS Properties NY, LLC, and LMS Properties N.Y. II, LLC, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

On the evening of December 19, 2014, the plaintiff allegedly sustained injuries when she tripped and fell while walking along a pathway on the grounds of the Green Hills Estates in Ferndale. The plaintiff commenced two separate personal injury actions against, among others, the defendants LMS Properties NY, LLC, LMS Properties N.Y. II, LLC, and Madison Realty Capital, LP (hereinafter collectively the defendants), which were later consolidated.

The defendants moved for summary judgment dismissing the amended complaint insofar as asserted against them, contending that the plaintiff could not identify the defect on the pathway that caused her to fall. The defendants further argued that they neither created, nor had notice of, the allegedly defective condition. With respect to Madison Realty Capital, LP (hereinafter Madison), the defendants argued that at the time of the accident, Madison had no connection to the property. The Supreme Court granted the defendants’ motion on the ground that the plaintiff "failed to identify where on the property [she] allegedly fell" and, thus, "failed to identify a defective condition." The plaintiff appeals.

In a trip and fall case, a defendant real 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 Williams v. Island Trees Union Free Sch. Dist., 177 A.D.3d 936, 937, 114 N.Y.S.3d 118 ; Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 598, 892 N.Y.S.2d 181 ). A defendant may also establish its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff cannot identify the cause of his or her fall (see Nativo v. Dragonetti Bros. Landscaping Nursery & Florist, Inc., 190 A.D.3d 981, 982, 136 N.Y.S.3d 915 ; Davis v. Sutton, 136 A.D.3d 731, 732, 26 N.Y.S.3d 100 ). "A plaintiff's inability in a premises liability case 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" ( Chang v. Marmon Enters., Inc., 172 A.D.3d 678, 679, 99 N.Y.S.3d 397 ).

Here, viewing the evidence in the light most favorable to the plaintiff, as the nonmoving party, the defendants failed to establish, prima facie, that the plaintiff did not know what had caused her to fall (see Chang v. Marmon Enters., Inc., 172 A.D.3d at 679, 99 N.Y.S.3d 397 ; Flanagan v. Town of Huntington, 155 A.D.3d 1000, 1001, 64 N.Y.S.3d 590 ; Taveras v. 1149 Webster Realty Corp., 134 A.D.3d 495, 496–497, 23 N.Y.S.3d 162, affd 28 N.Y.3d 958, 38 N.Y.S.3d 516, 60 N.E.3d 411 ). Accordingly, summary judgment dismissing the amended complaint insofar as asserted against the defendants should not have been awarded on that basis.

Additionally, the defendants failed to establish, prima facie, that they did not...