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Peluso v. Red Rose Restaurant, Inc.

Supreme Court of New York, Second Department

May 22, 2013

Maryann Peluso, et al., appellants,
v.
Red Rose Restaurant, Inc., et al., respondents. Index No. 10799/07

Robert C. Fontanelli, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III], of counsel), for appellants.

Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo of counsel), for respondent.

WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SANDRA L. SGROI ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Silber, J.), dated November 10, 2011, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The injured plaintiff allegedly fell as she was exiting the defendants' premises. At her deposition, the injured plaintiff testified that she did not remember what happened from the moment she opened the door to exit until she found herself "laying down" on the sidewalk. After depositions were conducted, the defendants moved for summary judgment dismissing the complaint, arguing, inter alia, that there was no proof of any defective condition that allegedly caused the injured plaintiff to fall. The Supreme Court granted the motion.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff was unable to identify the cause of her accident without engaging in speculation (see Knudsen v Mamaroneck Post No. 90, Dept. of N.Y.-Am. Legion, Inc., 94 A.D.3d 1058; Rizos v Galini Seafood Rest., 89 A.D.3d 1004; Thompson v Commack Multiplex Cinemas, 83 A.D.3d 929; Reiff v Beechwood Browns Rd. Bldg. Corp., 54 A.D.3d 1015). In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs' contention, the deposition testimony of the injured plaintiff's mother-in-law, who allegedly was walking behind the injured plaintiff as she was exiting the premises, merely described the manner in which the injured plaintiff fell. Thus, such testimony did not raise a triable issue of fact as to any allegedly unsafe condition which may have resulted in the injured plaintiff's fall (see Knudsen v Mamaroneck Post NO. 90, Dept of N.Y.-Am. Legion, Inc., 94 A.D.3d at 1059; Grob v Kings Realty Assoc., 4 A.D.3d 394).

Contrary to the plaintiffs' contention, the defendants' motion was not premature. The plaintiffs failed to demonstrate that further discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the defendants (see CPLR 3212[f]; Tillem v Cablevision Sys. Corp., 38 A.D.3d 878; Lambert v Bracco, 18 A.D.3d 619).

The plaintiffs' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint (see Alvarez v Prospect Hosp., 68 N.Y.2d 320).

MASTRO, J.P., LEVENTHAL, SGROI and MILLER, JJ., concur.


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