Manning v. 6638 18TH Avenue Realty Corp.

• Decision Date: 04 April 2006
• Docket Number: 2004-09744.
• Citation: 814 N.Y.S.2d 178,28 A.D.3d 434,2006 NY Slip Op 02504
• Parties: CARMELLA MANNING, Respondent, v. 6638 18TH AVENUE REALTY CORP., Defendant and Third-Party Plaintiff-Appellant. T & E STORES, INC., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

28 A.D.3d 434

814 N.Y.S.2d 178

2006 NY Slip Op 02504

CARMELLA MANNING, Respondent, v. 6638 18TH AVENUE REALTY CORP., Defendant and Third-Party Plaintiff-Appellant T & E STORES, INC., Third-Party Defendant-Respondent.

2004-09744.

Appellate Division of the Supreme Court of the State of New York, Second Department.

April 4, 2006.

In an action to recover damages for personal injuries, the defendant third-party plaintiff, 6683 18th Avenue Realty Corp., appeals from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated September 22, 2004, as denied its motion, inter alia, for summary judgment dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment dismissing the complaint is granted, the complaint is dismissed, and the motion is otherwise denied as academic.

The plaintiff, an employee of the third-party defendant, allegedly sustained personal injuries when she tripped and fell on a staircase at her place of employment. The complaint alleges that "the plaintiff was caused to trip and fall on boxes as well as the conveyor belt and other debris located on said staircase." The defendant and third-party plaintiff, 6638 18th Avenue Realty Corp. (hereinafter Realty), the owner of the premises, moved, inter alia, for summary judgment dismissing the complaint. Realty met its burden of establishing prima facie entitlement to that relief by demonstrating that the plaintiff was unable to identify the cause of the accident (see Oettinger v. Amerada Hess Corp., 15 AD3d 638 [2005]; Teplitskaya v. 3096 Owners Corp., 289 AD2d 477 [2001]; Robinson v. Lupo, 261 AD2d 525, 526 [1999]; see generally Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). The plaintiff stated at her deposition that she "slipped on some kind of debris. Either a plastic string or a piece of cardboard, whatever fell off the conveyor at the time." However, when asked if she saw "this string or debris," she responded that she did not see what caused her to fall either before or after the accident. She testified that she "didn't really see anything," and "didn't see it specifically," but that "there was always strings and paper" and she "had to slip on something." "Although proximate cause can be established in `the absence of direct evidence of causation [and] . . . may be inferred from the facts and circumstances underlying the injury,' `[m]ere speculation as to the cause of a fall, where there can be many causes, is fatal to a cause of action'" (Oettinger v. Amerada Hess Corp., 15 AD3d, supra at 639 [internal quotation marks and citations omitted]; see Hartman v. Mountain Val. Brew Pub, 301 AD2d 570 [2003]; Garvin v. Rosenberg, 204 AD2d 388 [1994]).

In opposition, the plaintiff failed to raise a triable issue of fact as to the cause of the accident. "Since it is just as likely that the...