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DiLorenzo v. S.I.J. Realty Co., LLC

Supreme Court of New York, Second Department

March 12, 2014

Zina DiLorenzo, appellant,
v.
S.I.J. Realty Co., LLC, et al., respondents. Index No. 25025/09

Dell, Little, Trovato & Vecere, LLP, Bohemia, N.Y. (James V. Durgana of counsel), for appellant.

Perez & Varvaro, Uniondale, N.Y. (Denise A. Cariello of counsel), for respondent S.I.J. Realty Co., LLC.

Amy T. Sheehan, Little Neck, N.Y. (Scott Goldfinger of counsel), for respondent Murphy's Maids, Inc.

RANDALL T. ENG, P.J., RUTH C. BALKIN, SANDRA L. SGROI, JEFFREY A. COHEN, 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.), entered April 27, 2012, as granted those branches of the motion of the defendant S.I.J. Realty Co., LLC, and the cross motion of the defendant Murphy's Maids, Inc., 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 allegedly was injured when she slipped and fell on the premises of the defendant S.I.J. Realty Co., LLC (hereinafter SIJ). She commenced this action against SIJ and Murphy Maids, Inc. (hereinafter Murphy), which had contracted to provide cleaning services at the premises. After discovery was completed, SIJ moved, and Murphy cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court, among other things, granted the respective branches of the motion and the cross motion, and the plaintiff appeals.

A plaintiff's inability to identify the cause of her fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation (see Deputron v A & J Tours, Inc., 106 A.D.3d 944, 945; Izaguirre v New York City Tr. Auth., 106 A.D.3d 878, 878; Racines v Lebowitz, 105 A.D.3d 934, 934; Patrick v Costco Wholesale Corp., 77 A.D.3d 810, 810). Here, SIJ and Murphy each demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff did not know what caused her to slip and fall (see Izaguirre v New York City Tr. Auth., 106 A.D.3d at 879; Mallen v Farmingdale Lanes, LLC, 89 A.D.3d 996, 997). Even viewing the evidence in the light most favorable to the plaintiff and according her the benefit of all reasonable inferences (see Giraldo v Twins Ambulette Serv., Inc., 96 A.D.3d 903, 903), her claim that the cause of her fall was a wet floor due to a recent cleaning rested entirely on speculation. Indeed, the plaintiff did not know when the floor had most recently been cleaned and did not know whether the floor was wet when she fell (see Deputron v A & J Tours, Inc., 106 A.D.3d at 945; Mallen v Farmingdale Lanes, LLC, 89 A.D.3d at 997). In opposition to the prima facie showing of SIJ and Murphy, the plaintiff failed to raise a triable issue of fact (see Deputron v A & J Tours, Inc., 106 A.D.3d at 945). Accordingly, the Supreme Court properly granted those branches of the motion and the cross motion which were for summary judgment dismissing the complaint insofar as asserted against SIJ and Murphy (see Babitskaya v Mosvideofilm Russia, Inc., 98 A.D.3d 639, 639).

In light of our determination, we need not address the remaining contentions of SIJ and Murphy.

ENG, P.J., BALKIN, SGROI and COHEN, JJ., concur.


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