Lane v. Tex. Roadhouse Holdings, LLC

• Decision Date: 08 June 2012
• Citation: 2012 N.Y. Slip Op. 04466,96 A.D.3d 1364,946 N.Y.S.2d 339
• Parties: Gertrude A. LANE and George A. Lane, Plaintiffs–Respondents, v. TEXAS ROADHOUSE HOLDINGS, LLC, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1364
946 N.Y.S.2d 339
2012 N.Y. Slip Op. 04466

Gertrude A. LANE and George A. Lane, Plaintiffs–Respondents,
v.
TEXAS ROADHOUSE HOLDINGS, LLC, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 8, 2012.

[946 N.Y.S.2d 340]

Mackenzie Hughes LLP, Syracuse (Jonathan H. Bard of Counsel), for Defendant–Appellant.

Richard J. Sardano, PC, Liverpool (John E. Heisler, Jr., of Counsel), for Plaintiffs–Respondents.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

MEMORANDUM:

[96 A.D.3d 1364]Plaintiffs commenced this action alleging that a “dangerous and defective condition” on defendant's property caused Gertrude A. Lane (plaintiff) to slip and fall. Defendant appeals from an order denying its motion for summary judgment dismissing the complaint. We reject the contention of defendant that it met its initial burden on the motion by establishing as a matter of law that plaintiffs were unable to identify what caused plaintiff to fall “ ‘without engaging in speculation’ ” ( Smart v. Zambito, 85 A.D.3d 1721, 1722, 926 N.Y.S.2d 245). “It is well established ... that ‘[a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof’ ” (Dodge v. City of Hornell Indus. Dev. Agency, 286 A.D.2d 902, 903, 730 N.Y.S.2d 902, quoting Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 980, 623 N.Y.S.2d 457;see Brown v. Smith, 85 A.D.3d 1648, 1649, 924 N.Y.S.2d 867). “Although [mere] conclusions based upon surmise, conjecture, speculation or assertions are without probative value ..., a case of negligence based wholly on circumstantial evidence may be established if the plaintiffs show[ ] facts and conditions from which the negligence of the defendant and the [96 A.D.3d 1365]causation of the accident by that negligence may be reasonably inferred” ( Seelinger v. Town of Middletown, 79 A.D.3d 1227, 1229, 913 N.Y.S.2d 376 [internal quotation marks omitted] ). Here, although plaintiff was unable to identify the specific

[946 N.Y.S.2d 341]

source of her fall at her deposition due to the onset of unrelated mental status issues, plaintiffs “submitt[ed] evidence establishing that she fell in the immediate vicinity of [several uneven and unsteady pavement blocks of which defendant had actual notice], thereby rendering any other potential cause of her fall ‘sufficiently remote or technical to enable [a] jury to reach [a] verdict...