Salenger, Sack, Kimmel & Bavaro, LLP (Mitchell Dranow,
Sea Cliff, NY, of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, NY (Deborah
A. Brenner and Drake A. Colley of counsel), for respondent
City of New York.
Martyn, Toher, Martyn & Rossi, Mineola, NY (Paul D.
McBride of counsel), for respondents Redeemer Lutheran School
and Evangelical Lutheran Church of the Redeemer.
WILLIAM F. MASTRO, J.P. RUTH C. BALKIN JEFFREY A. COHEN
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
consolidated action to recover damages for personal injuries,
etc., the plaintiffs appeal, as limited by their brief, (1)
from so much of an order of the Supreme Court, Queens County
(Kerrigan, J.), dated October 22, 2014, as granted that
branch of the motion of the defendant City of New York which
was for summary judgment dismissing the complaint insofar as
asserted against it, and (2) from so much of a judgment of
the same court entered December 16, 2014, as, upon an order
of the same court dated February 25, 2014, inter alia,
granting the motion of the defendants Redeemer Lutheran
School and Evangelical Lutheran Church of the Redeemer for
summary judgment dismissing the complaint insofar as asserted
against them, is in favor of those defendants and against the
plaintiffs, dismissing the complaint insofar as asserted
that the order dated October 22, 2014, and the judgment are
affirmed insofar as appealed from, with one bill of costs
payable to the respondents appearing separately and filing
plaintiff's inability to identify the cause of his or her
fall is fatal to a cause of action to recover damages for
personal injuries because a finding that the defendant's
negligence, if any, proximately caused the plaintiff's
injuries would be based on speculation (see Viviano v
KeyCorp, 128 A.D.3d 811; Barone v Concert Serv.
Specialists, Inc., 127 A.D.3d 1119; Ash v City of
New York, 109 A.D.3d 854, 855; Alabre v Kings
Flatland Car Care Ctr., Inc., 84 A.D.3d 1286, 1287).
Proximate cause may be established without direct evidence of
causation by inference from the circumstances of the
accident. However, mere speculation as to the cause of an
accident, when there could have been many possible causes, is
fatal to a cause of action (see Viviano v KeyCorp,
128 A.D.3d at 811-812; Barone v Concert Serv.
Specialists, Inc., 127 A.D.3d at 1119-1120; Racines
v Lebowitz, 105 A.D.3d 934; Louman v Town of
Greenburgh, 60 A.D.3d 915, 916; Costantino v
Webel, 57 A.D.3d 472, 472; Manning v 6638 18th Ave.
Realty Corp., 28 A.D.3d 434).
the moving defendants demonstrated their prima facie
entitlement to judgment as a matter of law by establishing,
through the submission of transcripts of the injured
plaintiff's testimony at the hearing held pursuant to
General Municipal Law § 50-h (hereinafter the 50-h
hearing) and his deposition, that the plaintiffs could not
identify the cause of the injured plaintiff's fall
without engaging in speculation (see Viviano v
KeyCorp, 128 A.D.3d at 812; Ash v City of New
York, 109 A.D.3d at 855-856; Racines v
Lebowitz, 105 A.D.3d at 935; Louman v Town of
Greenburgh, 60 A.D.3d at 916). During his 50-h hearing,
the injured plaintiff testified that he was walking on the
sidewalk and was about to cross the street when his right
foot caught on "some sort of stone, " causing him
to fall. He did not see the stone before the accident, but
after he fell, he looked and saw stones embedded in the earth
around a tree, which caught his foot. At his deposition,
however, the injured plaintiff testified that as he was about
to cross the street, he was paying attention to traffic and
his foot "hit something" causing him to lose his
balance and fall. This time, he identified a raised portion
of the sidewalk, approximately three feet away from the tree,
as the cause of his fall. He distinguished this area from the
cobblestones around the tree and testified that he did not
make contact with the cobblestones, as he was "further
down, to the side of the tree." Contrary to the
plaintiffs' contention, the injured plaintiff's own
contradictory testimony does not create a question of fact
(see Mallory v City of New Rochelle, 41 A.D.3d 556,
557). Rather, it ...