Gardell v. Arden Ave. Homeowners Ass'n

214 N.Y.S.3d 64

228 A.D.3d 834

Darlene GARDELL, etc., appellant,

v.ARDEN AVENUE HOMEOWNERS ASSOCIATION, et al., respondents (and a third-party action).

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

Argued—January 23, 2024

June 20, 2024

Krentsel Guzman Herbert, LLP (Mischel & Horn, P.C., New York, NY [Scott T. Horn, Lauren E. Bryant, and Ross Friscia], of counsel), for appellant.

Gallo Vitucci Klar LLP, Woodbury, NY (Nicholas Vevante and Jeremy B. Cantor of counsel), for respondents.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, LARA J. GENOVESI, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Lizzette Colon, J.), dated November 1, 2022. The order granted the defendants’ motion for summary judgment dismissing the amended complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the defendants’ motion which were for summary judgment dismissing the amended complaint insofar as asserted against the defendants Arden Avenue Homeowners Association, Berkley Court Homeowners Association, Inc., Board of Directors of Arden Avenue Homeowners Association, Inc., and T.W. Finnerty Property Management, Inc., and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

On January 4, 2018, Robert Gardell (hereinafter the decedent) allegedly sustained injuries when he slipped and fell in the parking lot of a premises owned and/or operated by the defendants Arden Avenue Homeowners Association, Berkley Court Homeowners Association, Inc., Board of Directors of Arden Avenue Homeowners Association, Inc., and T.W. Finnerty Property Management, Inc. On May 8, 2018, the decedent died from causes unrelated to the accident. In October 2020, the plaintiff, as the administrator of the decedent’s estate, commenced this action against the defendants.

The defendants moved for summary judgment dismissing the amended complaint, contending that the plaintiff could not provide admissible evidence identifying the cause of the accident. In support of their motion, the defendants submitted a transcript of the plaintiff's deposition testimony in which the plaintiff testified that she had conversations with the decedent wherein he claimed that he slipped and fell on snow and ice on the premises, that the decedent showed the plaintiff the location of the accident, and that the plaintiff took photographs of the accident location. The defendants further provided a transcript of the deposition testimony of a nonparty witness who testified regarding conversations with the decedent and the witness’s own observation of the accident location immediately after the accident and of snow on the ground from the night prior to the accident. The defendants contended that the deposition testimony concerning the statements that the decedent made to the plaintiff and the nonparty witness constituted inadmissible hearsay. The defendants also contended that the defendant E.W.C. Property Management, LLC, had no involvement with the premises at the time of the accident and, thus, was not a proper party to this action. In an order dated November 1, 2022, the Supreme Court granted the defendants’ motion. The plaintiff appeals.

[1–3] In a premises liability case, a defendant moving for summary judgment can make a prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of the plaintiffs fall without engaging in speculation (see Atehortua v. Jaramillo, 195 A.D.3d 670, 671, 145 N.Y.S.3d 357; Padilla v. CVS Pharm., 175 A.D.3d 584, 585, 107 N.Y.S.3d 428; Knudsen v. Mamaroneck Post No. 90, Dept. of N.Y.-Am. Legion, Inc., 94 A.D.3d 1058, 942 N.Y.S.2d 800). " ‘[A] plaintiff's 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’" (Kontorinakis v. 27-10 30th Realty, LLC, 172 A.D.3d 835, 836, 101 N.Y.S.3d 50, quoting Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747). However, proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. It is the mere speculation as to the cause of an accident when there could have been many possible causes that is fatal to a cause of action (see Ja,ndly v. New Carle Place Farm, Inc., 211 A.D.3d 1018, 1019, 182...