Miranda v. Leone Realty, Inc.

179 A.D.3d 1052

114 N.Y.S.3d 705 (Mem)

Marisol MIRANDA, et al., Appellants,

v.LEONE REALTY, INC., et al., Respondents.

2017–03769

Index No. 33326/14

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

Argued - November 4, 2019

January 29, 2020

Marc J. Bern & Partners, LLP, New York, N.Y. (John C. Clark and Debra Humphrey of counsel), for appellants.

MARK C. DILLON, J.P., RUTH C. BALKIN, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Rolf M. Thorsen, J.), dated March 17, 2017. The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs or disbursements.

On March 26, 2014, the plaintiff Marisol Miranda (hereinafter the injured plaintiff) allegedly was injured when she twisted her foot and fell as she was descending an exterior staircase leading out of her apartment in a building owned by the defendants. The injured plaintiff, and her husband suing derivatively, commenced this action against the defendants, alleging, inter alia, that the injured plaintiff's injuries were caused by the defendants' negligence in failing to maintain the staircase in a reasonably safe condition. The defendants moved for summary judgment dismissing the complaint on the grounds that the injured plaintiff did not know what caused her to fall and that the defendants did not have actual or constructive notice of any dangerous condition on the staircase. The Supreme Court granted the motion on the grounds that the plaintiff was unable to identify what caused her to fall and that the plaintiffs' expert's determination as to what caused the fall was based on sheer speculation. The plaintiffs appeal.

"[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 Burke v. Umbaca, 163 A.D.3d 618, 618, 76 N.Y.S.3d 835 ). "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 C.M. v. Gasiorowski, 173 A.D.3d 1156, 1157, 102 N.Y.S.3d 681 ; Rodriguez v. New York City Hous. Auth., 169 A.D.3d 947, 948–949...