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Hod v. Orchard Fields, LLC

Supreme Court of New York, Second Department

November 20, 2013

Shelly Hod, etc., appellant,
v.
Orchard Fields, LLC, respondent. Index No. 10326/10

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Brand, Glick & Brand, P.C., Garden City, N.Y. (Andrew B. Federman of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Queens County (Butler, J.), entered May 21, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

According to the plaintiff, the plaintiff's decedent fell down an interior stairway at premises owned by the defendant, sustaining injuries which ultimately caused his death. The plaintiff commenced this action to recover damages for wrongful death. Thereafter, the defendant moved for summary judgment dismissing the complaint, asserting, inter alia, that the plaintiff had failed to sufficiently identify the cause of the decedent's fall. The plaintiff opposed the motion, asserting, among other things, that the Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76) should apply to the circumstances of this case, since the decedent could not reveal the precise cause of his fall. With her opposition papers, the plaintiff submitted an expert affidavit, in which her expert identified several allegedly dangerous conditions in and around the stairway. In reply, the defendant, among other things, objected to the plaintiff's submission of the expert affidavit, since the plaintiff failed to identify her expert until approximately two months after the note of issue was filed. In the order appealed from, the Supreme Court granted the defendant's motion.

In support of its motion, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff could not identify what caused the plaintiff's decedent to fall down the stairs (see Yefet v Shalmoni, 81 A.D.3d 637, 637; Martone v Shields, 71 A.D.3d 840, 840-841; Hennington v Ellington, 22 A.D.3d 721, 721; Tejada v Jonas, 17 A.D.3d 448, 448). In opposition, the plaintiff failed to raise a triable issue of fact (see Knudsen v Mamaroneck Post No. 90, Dept. of N.Y.-Am. Legion, Inc., 94 A.D.3d 1058, 1059; Ghany v Hossain, 65 A.D.3d 517, 517). Contrary to the plaintiff's contention, the Noseworthy doctrine does not apply to the circumstances of this case, since the defendant's knowledge as to the cause of the decedent's accident is no greater than that of the plaintiff (see Knudsen v Mamaroneck Post No. 90, Dept. of N.Y.-Am. Legion, Inc., 94 A.D.3d at 1059; Zalot v Zieba, 81 A.D.3d 935, 936). Contrary to the plaintiff's contention, considering all of the relevant circumstances in this case, the Supreme Court did not improvidently exercise its discretion in declining to consider her expert's affidavit (see generally CPLR 3101[d][1]; Rivers v Birnbaum, 102 A.D.3d 26). Even if we were to consider the defects identified in the plaintiff's expert's affidavit, the plaintiff failed to raise a triable issue of fact as to whether the decedent's fall was proximately caused by those allegedly unsafe conditions (see Knudsen v Mamaroneck Post No. 90, Dept. of N.Y.-Am. Legion, Inc., 94 A.D.3d at 1059; Noel v Starrett City, Inc., 89 A.D.3d 906, 907; Ghany v Hossain, 65 A.D.3d at 517; Guiterrez v Iannacci, 43 A.D.3d 868, 868; Tejada v Jonas, 17 A.D.3d at 448). "Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation" (Teplitskaya v 3096 Owners Corp., 289 A.D.2d 477, 478; see Knudsen v Mamaroneck Post No. 90, Dept. of N.Y.-Am. Legion, Inc., 94 A.D.3d at 1059; Ghany v Hossain, 65 A.D.3d at 517; Reiff v Beechwood Browns Rd. Bldg. Corp., 54 A.D.3d 1015, 1015).

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

ANGIOLILLO, J.P., DICKERSON, AUSTIN and HINDS-RADIX, JJ., concur.


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