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CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (CML’s) motion for summary judgment in this slip and fall case should have been granted because the cause of plaintiff’s fall could not be established without resort to speculation. Plaintiff alleged the her foot went under a mat which had been lifted up by a leaf blower. However she did not see anyone operating a leaf blower and did not see the mat lift up off the ground:

In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall…  A plaintiff’s inability to identify the cause of his or her fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation … .

Here, CML established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the injured plaintiff’s deposition testimony, which demonstrated that she was unable to identify the cause of her fall without resorting to speculation … . The injured plaintiff testified at her deposition that when she exited the convenience store, her left foot went underneath the floor mat, causing her to trip and fall. While the injured plaintiff assumed that a leaf blower operated by an employee of CML caused the mat to lift up immediately prior to her fall, she did not see anyone in the area using a leaf blower prior to her fall and she never observed the mat lift up from the ground … . Razza v LP Petroleum Corp., 2017 NY Slip Op 06202, Second Dept 8-16-17

 

NEGLIGENCE (SLIP AND FALL, CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL,  CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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THE INSURANCE LAW REQUIRED SUBMITTING THE DISPUTE BETWEEN TWO CARRIERS TO ARBITRATION; THEREFORE SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER THE MATTER; THE LACK OF SUBJECT MATTER JURISDICTION CAN BE RAISED AT ANYTIME (SECOND DEPT).
THE INSPECTION PIT, WHICH DID NOT VIOLATE ANY STATUTE OR REGULATION, WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; PLAINTIFF’S FALL INTO THE PIT WAS NOT ACTIONABLE (SECOND DEPT).
STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, IMMIGRATION LAW VIOLATIONS ARE NOT CRIMES, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).
PETITIONER DID NOT DEMONSTRATE THE COUNTY HAD TIMELY KNOWLEDGE OF THE FACTS UNDERLYING THE FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION; THEREFORE PETITIONER SHOULD NOT HAVE BEEN GRANTED LEAVE TO FILE A LATE NOTICE OF CLAIM (SECOND DEPT).
FATHER’S PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED BECAUSE HIS PATERNITY HAD NOT BEEN ADJUDICATED AT THE TIME THE PETITION WAS BROUGHT; THE PETITION ADEQUATELY ALLEGED PATERNITY WHICH WAS SUBSEQUENTLY CONFIRMED BY A DNA TEST (SECOND DEPT).
PLAINTIFF PROPERLY ALLOWED TO AMEND THE MEDICAL MALPRACTICE COMPLAINT AFTER THE STATUTE OF LIMITATIONS HAD RUN TO ADD A TREATING DOCTOR EMPLOYED BY A NAMED DEFENDANT PURSUANT TO THE RELATION-BACK DOCTRINE (SECOND DEPT).
ALTHOUGH THE MEDICATION DISPENSED BY DEFENDANT PHARMACY WAS PRESCRIBED, THE COMPLAINT ALLEGED THE MEDICATION WAS CLEARLY CONTRAINDICATED; THE PHARMACIST MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMSSED (SECOND DEPT).
DEFENDANTS PRESENTED EVIDENCE THE BANK ACCEPTED PAYMENTS IN LESS THAN THE REQUIRED AMOUNT AFTER THE ALLEGED DEFAULT; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)

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