Jean-Joseph v. Port Auth. of N.Y. & N.J.

177 N.Y.S.3d 893 (Mem)

Maxi JEAN–JOSEPH, respondent,

v.PORT AUTHORITY OF NEW YORK AND NEW JERSEY, appellant.

2021–03376

Index No. 723404/20

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

Argued—October 6, 2022

December 7, 2022

Port Authority of New York and New Jersey Law Department, New York, NY (Brian P. Hodgkinson of counsel), for appellant.

Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for respondent.

COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered May 10, 2021. The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for injuries he allegedly sustained when he slipped and fell in a parking lot at John F. Kennedy International Airport in Queens. Following discovery, the defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff was not able to identify what caused him to fall. In an order entered May 10, 2021, the Supreme Court denied the motion. The defendant appeals.

" ‘[A] defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall’ " ( Santiago v. Williams, 208 A.D.3d 604, 604, 173 N.Y.S.3d 597, quoting Nativo v. Dragonetti Bros. Landscaping Nursery & Florist, Inc., 190 A.D.3d 981, 982, 136 N.Y.S.3d 915 ; see Butts v. SJF, LLC, 171 A.D.3d 688, 689, 97 N.Y.S.3d 219 ). " ‘Indeed, 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’ " ( Santiago v. Williams, 208 A.D.3d at 604, 173 N.Y.S.3d 597, quoting Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 943, 140 N.Y.S.3d 717 ; see Redendo v. Central Ave. Chrysler Jeep, Inc., 205 A.D.3d 1060, 1061–1062, 166 N.Y.S.3d 912 ).

Here, viewing the evidence in the light most favorable to the plaintiff as the nonmovant (see Burrus v. Douglaston Realty Mgt. Corp., 175 A.D.3d 461, 106 N.Y.S.3d 329 ), the defendant failed to meet its burden of establishing, prima facie, that the plaintiff was unable to identify the cause of his fall without resort to speculation (see Butts v. SJF, LLC, 171 A.D.3d at 689, 97 N.Y.S.3d 219 ). Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the...