Furey, Leverage, Manzione, Williams & Darlington, P.C.,
Hempstead, NY (Thomas G. Leverage and Susan Darlington of
counsel), for appellants.
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C.,
Mineola, NY (Melissa C. Ingrassia, E. David Woycik, Jr., and
Martin Block of counsel), for respondent.
RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, JEFFREY A. COHEN,
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
action, inter alia, to recover damages for wrongful death,
etc., the defendants appeal from an order of the Supreme
Court, Suffolk County (Mayer, J.), dated April 28, 2015,
which denied their motion for summary judgment dismissing the
that the order is affirmed, with costs.
defendant Vets & Sparton, LLC, owned a shopping center in
Hauppauge, and the defendant First Development Corporation
was the property manager of that premises. On July 22, 2011,
Sheldon Davidoff (hereinafter the decedent) and his wife,
Marilyn Davidoff (hereinafter the plaintiff), were shopping
at the shopping center. The decedent and the plaintiff were
crossing the parking lot toward their car, when the decedent
stepped up onto an allegedly cracked curb, fell backward, and
sustained fatal injuries.
plaintiff thereafter commenced this action, individually and
as administrator of the decedent's estate, against the
defendants. The defendants moved for summary judgment
dismissing the amended complaint, and the Supreme Court
denied the motion. The defendants appeal.
a defendant moving for summary judgment in a trip-and-fall
case has the burden of establishing that it did not create
the hazardous condition that allegedly caused the fall, and
did not have actual or constructive notice of that condition
for a sufficient length of time to discover and remedy
it" (Ash v City of New York, 109 A.D.3d 854,
855). However, a defendant may establish its prima facie
entitlement to judgment as a matter of law by submitting
evidence that the plaintiff cannot identify the cause of his
or her fall (see McRae v Venuto, 136 A.D.3d 765,
766; Davis v Sutton, 136 A.D.3d 731, 732; Rivera
v J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827).
" [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'" (Ash v City of New York, 109
A.D.3d at 855, quoting Alabre v Kings Flatland Car Care
Ctr., Inc., 84 A.D.3d 1286, 1287 [internal quotation
marks omitted]; see Blocker v Filene's Basement
#51-00540, 126 A.D.3d 744, 745).
viewing the evidence in the light most favorable to the
plaintiff, the defendants failed to establish, prima facie,
that the plaintiff cannot identify what caused the decedent
to fall. In support of their motion, the defendants submitted
the deposition testimony of the plaintiff, who witnessed the
accident. The plaintiff's deposition testimony
demonstrated the existence of a triable issue of fact as to
whether the decedent fell as a result of the allegedly
cracked condition of the curb in the parking lot (see
Baldasano v Long Is. Univ., 143 A.D.3d 933, 933;
Zorin v City of New York, 137 A.D.3d 1116, 1117;
Davis v Sutton, 136 A.D.3d at 732; Martino v
Patmar Prop., Inc., 123 A.D.3d 890, 891). Accordingly,
the defendants failed to make a prima facie showing of their
entitlement to judgment as a matter of law on this ground.
can be more than one proximate cause of an accident"
(Cox v Nunez, 23 A.D.3d 427, 427), and "
[g]enerally, it is for the trier of fact to determine the
issue of proximate cause'" (Miller v United
Parcel Serv., Inc., 131 A.D.3d 1023, 1024, quoting
Kalland v Hungry Harbor Assoc., LLC, 84 A.D.3d 889,
889). "However, the issue of proximate cause may be
decided as a matter of law where only one conclusion may be
drawn from the established facts" (Kalland v Hungry
Harbor Assoc., LLC, 84 A.D.3d at 889). Here, the
defendants' submissions, including the affidavits of
their expert witnesses, failed to establish, prima facie,
that the allegedly dangerous condition of the curb was not a
proximate cause of the decedent's fall.
landowner has no duty to protect or warn against an open and
obvious condition if the condition is not inherently
dangerous as a matter of law (see Weiss v Half Hollow
Hills Cent. School Dist., 70 A.D.3d 932, 933; Cupo v
Karfunkel, 1 A.D.3d 48, 51-53). A condition is open and
obvious if it is readily observable to those employing the
reasonable use of their senses (see Giambruno v Wilbur F.
Breslin Dev. Corp., 56 A.D.3d 520, 521). The issue of
whether a dangerous condition is open and obvious is
fact-specific and usually a question for a jury (see
Stoppeli v Yacenda, 78 A.D.3d 815, 816; Shah v Mercy
Med. Ctr., 71 A.D.3d 1120). Here, the defendants failed
to demonstrate, prima facie, that the alleged dangerous
condition of the curb was open and obvious and not inherently
dangerous as a matter of law (see Parente v City of New
York, 144 A.D.3d 1117, 1118; Furnari v City of New
York, 89 A.D.3d 605, 607).
defendants' remaining contention need not be reached in
light of our determination.
the Supreme Court properly denied the defendants' ...