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Deputron v. A & J Tours, Inc.

Supreme Court of New York, Second Department

May 22, 2013

Nancy Deputron, appellant,
v.
A & J Tours, Inc., et al., respondents, et al., defendant (and a third-party action). (Index No. 10539/08)

Scott Baron & Associates, P.C., Howard Beach, N.Y. (W. Bradford Bernadt of counsel), for appellant.

Sobel Law Group, LLC, Huntington, N.Y. (Michelle Meiselman of counsel), for respondent A & J Tours, Inc.

Goldberg Segalla LLP, Garden City, N.Y. (Brendan T. Fitzpatrick and Paul S. Devine of counsel), for respondent ABC Companies.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (McDonald, J.), dated May 29, 2012, as granted those branches of the separate motions of the defendants A & J Tours, Inc., and ABC Companies which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The plaintiff commenced this action to recover damages for injuries allegedly sustained when she tripped and fell while exiting a bus that was owned and operated by the defendant A & J Tours, Inc. (hereinafter A & J Tours), manufactured by the defendant Van Hool, NV, and distributed by the defendant ABC Companies (hereinafter ABC). A & J Tours and ABC (hereinafter together the moving defendants) separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them, and the Supreme Court granted those branches of the motions.

"In a slip-and-fall case, 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" (Patrick v Costco Wholesale Corp., 77 A.D.3d 810, 810; see Alabre v Kings Flatland Car Care Ctr., Inc., 84 A.D.3d 1286, 1287; Rajwan v 109-23 Owners Corp., 82 A.D.3d 1199, 1200). Here, the moving defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the plaintiff and her husband, which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation (see Dennis v Lakhani, 102 A.D.3d 651; Califano v Maple Lanes, 91 A.D.3d 896, 897; McFadden v 726 Liberty Corp., 89 A.D.3d 1067, 1067; Patrick v Costco Wholesale Corp., 77 A.D.3d at 810-811). Although the plaintiff claimed that a bar connected to the bottom step of the bus caused her to trip, she acknowledged that she did not see this bar before her fall, that she did not know which foot made contact with the bar, and that she only assumed that she had tripped on the bar after she regained consciousness and went looking for the source of the fall.

In opposition, the plaintiff failed to raise a triable issue of fact as to the cause of the accident (see Zuckerman v City of New York, 49 N.Y.2d 557, 562). "Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture" (Dennis v Lakhani, 102 A.D.3d at 652; see Alabre v Kings Flatland Car Care Ctr., Inc., 84 A.D.3d at 1287; Manning v 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435).

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted those branches of the separate motions of A & J Tours and ABC which were for summary judgment dismissing the complaint insofar as asserted against each of them.

DILLON, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.


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