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Goldfischer v. Great Atlantic & Pacific Tea Company

June 23, 2009

BARBARA GOLDFISCHER, ET AL., PLAINTIFFS-APPELLANTS,
v.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., ET AL., DEFENDANTS-RESPONDENTS.



Order, Supreme Court, New York County (Milton A. Tingling, J.), entered November 17, 2008, which, in a personal injury action for plaintiff's trip and fall in a supermarket owned and managed by defendants, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Friedman, Catterson, Moskowitz, Richter, JJ.

106195/06

In opposition to defendants' prima facie showing that plaintiff failed to identify the cause of her fall, plaintiff failed to raise a triable issue of fact. Unaware of what caused her fall, she merely surmised that it was caused by the bump in the rubber floor mat that she observed for the first time after she fell. Co-plaintiff husband testified that he did not observe what seemed to be a crease in the mat until after his wife fell, and could not identify where the crease was on the mat or whether it was higher than one inch or "accurately describe it that specifically." The failure to identify the condition that caused plaintiff's fall is fatal to plaintiffs' claim (see Kwitney v Westchester Towers Owners Corp., 47 AD3d 495, 495-496 [2008]; Pena v Woman's Outreach Network, Inc., 35 AD3d 104, 109-111 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090623

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