Santiago v. Williams

208 A.D.3d 604

173 N.Y.S.3d 597

Julio SANTIAGO, appellant,

v.Michael G. WILLIAMS, respondent.

2020–06974

Index No. 504041/18

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

Argued—May 26, 2022

August 10, 2022

Pontisakos & Brandman, P.C., Garden City, NY (Elizabeth Mark Meyerson of counsel), for appellant.

Gladstein Keane & Partners PLLC, New York, NY (Thomas F. Keane and Anthony J. Spiga of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dawn Jimenez–Salta, J.), dated July 24, 2020. The order granted the defendant's motion for summary judgment dismissing the complaint.

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

In December 2017, the plaintiff allegedly was injured when he tripped and fell on a sidewalk abutting real property owned by the defendant. Thereafter, the plaintiff commenced the instant action against the defendant to recover damages for personal injuries, alleging, inter alia, that the defendant was negligent in maintaining the sidewalk area where the accident occurred. After discovery, the defendant moved for summary judgment dismissing the complaint on the ground, among others, that the plaintiff was unable to identify what caused him to fall without resort to speculation. In an order dated July 24, 2020, the Supreme Court granted the defendant's motion. The plaintiff appeals.

"In a trip-and-fall case, 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" ( Nativo v. Dragonetti Bros. Landscaping Nursery & Florist, Inc., 190 A.D.3d 981, 982, 136 N.Y.S.3d 915 ; see Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 943, 140 N.Y.S.3d 717 ; Kerzhner v. New York City Tr. Auth., 170 A.D.3d 982, 96 N.Y.S.3d 298 ). "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" ( Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d at 943, 140 N.Y.S.3d 717 ; see Brachfield v. Sternlicht, 202 A.D.3d 742, 743, 163 N.Y.S.3d 533 ; Palahnuk v. Tiro Rest. Corp., 116 A.D.3d 748, 983 N.Y.S.2d 603 ). "That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall. Rather, it means only that a plaintiff's inability to establish the cause of his or [her] fall—whether by personal knowledge or by other admissible proof—is fatal to a cause of action based on negligence" ( Izaguirre v. New York City Tr. Auth., 106 A.D.3d 878, 878, 966 N.Y.S.2d 122 ; see Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d at 943, 140 N.Y.S.3d 717 ). "However, that a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury" ( Buglione v. Spagnoletti, 123 A.D.3d 867, 867, 999 N.Y.S.2d 453 ).

Here, viewing the evidence in the light most favorable to the plaintiff (see Sage v. Taylor, 195 A.D.3d 971, 972, 146 N.Y.S.3d 496 ), the defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his fall without resort to speculation. In support of his motion, the defendant submitted, inter alia, a transcript of the plaintiff's deposition testimony, who identified a "raised up" sidewalk flag in photographs depicting the sidewalk where he fell, and, referring to the photographs, testified that he "tripped there." Contrary to the determination of the Supreme Court, this evidence raised a triable...