Benjamin v. The Court Jester Athletic Club, Ltd.

• Docket Number: 535034
• Decision Date: 22 June 2023
• Citation: 2023 NY Slip Op 03382
• Parties: Ronald R. Benjamin, Appellant, v. The Court Jester Athletic Club, Ltd., Respondent.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03382

Ronald R. Benjamin, Appellant,
v.
The Court Jester Athletic Club, Ltd., Respondent.

No. 535034

Supreme Court of New York, Third Department

June 22, 2023

Calendar Date: May 2, 2023

Ronald R. Benjamin, Binghamton, appellant pro se.

Mackenzie Hughes LLP, Syracuse (Jennifer D. Caggiano of counsel), for respondent.

Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Fisher and McShan, JJ.

Reynolds Fitzgerald, J.

Appeal from an order of the Supreme Court (Brian D. Burns, J.), entered March 8, 2022 in Broome County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff commenced this negligence action seeking damages for injuries that he sustained when he slipped and fell while playing racquetball in a facility owned and operated by defendant. The gravamen of plaintiff's complaint is that defendant was negligent for its failure to properly maintain the racquetball court floor in conformance with the standards of the American Society of Testing and Materials (hereinafter ASTM), by failing to keep the floor free of substances, by failing to regularly clean the floor, by failing to inspect the floor prior to use and by failing to assure that the floor was not slippery. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint on the grounds that plaintiff was unable to identify the cause of his fall, lack of actual or constructive notice and assumption of the risk. Supreme Court granted defendant's motion. Plaintiff appeals.

We affirm. "[A] defendant moving for summary judgment in a [slip] and fall case must establish that its property had been maintained in a reasonably safe condition and that it neither created nor had actual or constructive notice of the dangerous condition that caused the plaintiff's fall" (Bovee v Posniewski Enters., Inc., 206 A.D.3d 1112, 1112 [3d Dept 2022] [citations omitted]). "[A] defendant can also demonstrate entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation" (Mulligan v R & D Props. of N.Y. Inc, 162 A.D.3d 1301, 1301 [3d Dept 2018] [internal quotation marks and citation omitted]). "[E]ven when a plaintiff is unable to identify the cause of a fall with certainty, a case of negligence based wholly on circumstantial evidence may be established if the plaintiff shows facts and conditions...