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Acunia v. New York City Dep't of Education

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 22, 2009

BRAULIO ACUNIA, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, ANGELA SALGADO, ET AL., PLAINTIFFS-APPELLANTS,
v.
THE NEW YORK CITY DEPARTMENT OF EDUCATION, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about November 5, 2008, which granted defendants' cross motion for summary judgment dismissing the complaint in its entirety, unanimously affirmed, without costs.

Appellate Division, First Department

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.

Sweeny, J.P., Catterson, Renwick, Freedman, Abdus-Salaam, JJ.

14551/05

The infant plaintiff, an eighth grade student, slipped and fell while playing basketball in the school gymnasium. Although a plaintiff bears no burden to identify precisely what caused his slip and fall, mere speculation about causation is inadequate to sustain the cause of action (Segretti v Shorenstein Co., E., 256 AD2d 234, 235 [1998]). Furthermore, the fact that a floor is slippery by reason of its smoothness or polish, in the absence of any proof of the negligent application of wax or polish, does not give rise to a cause of action, or even an inference of negligence (Pagan v Local 23-25 Intl. Ladies Garment Workers Union, 234 AD2d 37, 38 [1996]).

Here, defendants met their burden of establishing entitlement to summary dismissal. The infant plaintiff, while claiming he slipped on wax, acknowledged in his testimony that the wax was not wet, that he did not see a particular accumulation of wax that caused his fall, and that he never experienced any slipperiness prior to this slip and fall. Without any specific allegations as to what precipitated his fall, his claim that the City's negligence in maintaining the floor was the proximate cause of his injuries is based on speculation (see Zanki v Cahill, 2 AD3d 197 [2003], affd 2 NY3d 783 [2004]). On this record, the infant plaintiff's fall could just as likely have been caused by some other factor than defendants' negligence (see Oettinger v Amerada Hess Corp, 15 AD3d 638, 639 [2005]).

The negligent supervision claim was properly dismissed in the absence of any evidence that the allegedly negligent supervision was a proximate cause of this injury (Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 385 [2003]). Based on the infant plaintiff's testimony as to how he fell, no additional supervision would have prevented the accident (see McCollin v Roman Catholic Archdiocese of N.Y., 45 AD3d 478 [2007]).

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

20091222

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