Hahn v. Go Go Bus Tours, Inc.

144 A.D.3d 748

40 N.Y.S.3d 549

2016 N.Y. Slip Op. 07294

Edward HAHN, respondent,

v.GO GO BUS TOURS, INC., et al., appellants.

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

Nov. 9, 2016.

Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum ], of counsel), for appellants.

Andrew Park, P.C., New York, NY (Ji–Hyong Lee of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Hart, J.), entered December 31, 2015, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained after he fell while attempting to board a bus that was parked along a sidewalk. The defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the defendants' motion. We reverse.

“Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” (Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 ; see Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 863, 5 N.Y.S.3d 302 ). “However, a defendant can make its prima facie showing of 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” (Ash v. City of New York, 109 A.D.3d at 855, 972 N.Y.S.2d 594 ; see Mitgang v. PJ Venture HG, LLC, 126 A.D.3d at 863–864, 5 N.Y.S.3d 302 ).

“[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” (Patrick v. Costco Wholesale Corp., 77 A.D.3d 810, 810, 909 N.Y.S.2d 543 ; see McFadden v. 726 Liberty Corp., 89 A.D.3d 1067, 1068, 933 N.Y.S.2d 617 ). Although “[p]roximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident [,] ... mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” (Costantino v. Webel, 57 A.D.3d 472, 472, 869 N.Y.S.2d 179 ; see Louman v. Town of Greenburgh, 60 A.D.3d 915, 916, 876 N.Y.S.2d 112 ). “Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation” (Ash v. City of New York, 109 A.D.3d at 855, 972 N.Y.S.2d 594 ; see Alabre v. Kings Flatland Car Care Ctr., Inc., 84 A.D.3d 1286, 1287, 924 N.Y.S.2d 174 ; Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435, 814 N.Y.S.2d 178 ).

Here, in support of their motion, the defendants submitted, among other things, a transcript of the plaintiff's deposition testimony, which demonstrated that he was unable to identify the cause of his accident without engaging in speculation (see McCarthy v. Jones, 139 A.D.3d 682, 682, 30 N.Y.S.3d 332 ; Baterna v. Maimonides Med. Ctr., 139 A.D.3d 653, 653, 31 N.Y.S.3d 544 ; Maglione v. Seabreeze By Water, Inc., 116 A.D.3d 929, 930, 984 N.Y.S.2d 132 ; see also Alabre v. Kings Flatland Car Care Ctr., Inc., 84 A.D.3d at 1287, 924 N.Y.S.2d 174 ; Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d at 435, 814 N.Y.S.2d 178 ). Furthermore, although the deposition testimony of another witness indicated that the plaintiff may have fallen after coming into...