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PLAINTIFF’S INABILITY TO IDENTIFY THE WET SUBSTANCE ON THE STEP WHERE SHE ALLEGEDLY FELL WAS NOT AN INABILITY TO IDENTIFY THE CAUSE OF THE FALL (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the slip and fall complaint should not have been dismissed because plaintiff did not know what the wet substance on the step was:

… [T]he defendant failed to establish, prima facie, that the plaintiff did not know what caused her to fall. In support of its motion, the defendant submitted the deposition testimony of the plaintiff, who testified that she slipped and fell on a wet step … . Contrary to the defendant’s contention, the plaintiff’s alleged inability to identify the “precise nature of the wet substance upon which she allegedly slipped and fell cannot be equated with a failure to identify the cause of her fall” … . Diaz v SCG 502, LLC, 2023 NY Slip Op 01779, Second Dept 4-5-23

Practice Point: Plaintiff alleged she slipped and fell on a wet step. Her inability to identify the wet substance was not an inability to identify the cause of her fall.

 

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