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DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED, OFFICE SOUGHT NOT SUFFICIENTLY DESCRIBED (SECOND DEPT).

The Second Department determined Supreme Court should have invalidated a designating petition because the office which was sought by the candidate was not sufficiently described:

Supreme Court erred in finding that the designating petition sufficiently described the office Larsen sought. “Election Law § 6-132(1) requires that each sheet of a designating petition state the public office or party position sought by the candidate'” … . Since many public offices and party positions are susceptible to a variety of descriptions, the “description will be deemed adequate so long as the petition, read as a whole, is sufficiently informative . . . so as to preclude any reasonable probability of confusing or deceiving the signers, voters or board of elections'” … .

Here, the candidates’ designating petition described the public office Larsen sought as “Town Board, Town of East Hampton,” but failed to specify the position Larsen sought to fill. Pursuant to Town Law § 60(1), every town board consists of “the supervisor” and “the town councilmen.” These are different public offices, and the candidates elected to each office serve terms of different lengths. By failing to specify the position Larsen sought, the candidates’ designating petition was not sufficiently informative so as to preclude the possibility of confusion … . Accordingly, the Supreme Court should have granted that branch of the petition which was to invalidate so much of the designating petition as pertained to Larsen. Matter of Bragman v Larsen, 2017 NY Slip Op 06267, Second Dept 8-23-17

ELECTION LAW (DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED, OFFICE SOUGHT NOT SUFFICIENTLY DESCRIBED (SECOND DEPT))/DESIGNATING PETITION (ELECTION LAW, DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED, OFFICE SOUGHT NOT SUFFICIENTLY DESCRIBED (SECOND DEPT))

PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the prosecutor’s reasons for striking two black prospective jurors were pretextual:

… [T]he record demonstrates that the race-neutral reasons for challenging prospective jurors Nos. 2 and 8 were not applied equally to exclude other prospective jurors who were not black, even though those other jurors had answered the subject hypothetical questions in the same way that prospective jurors Nos. 2 and 8 had answered. Although the uneven application of race-neutral factors does not always indicate pretext where the prosecution can articulate other legitimate reasons to justify the uneven use of its challenges… , the prosecution here failed to do so. Under the circumstances, we conclude that the nonracial bases advanced by the prosecutor for challenging prospective jurors Nos. 2 and 8 were pretextual … . Accordingly, the defendant is entitled to a new trial …. . People v Brown, 2017 NY Slip Op 06289, Second Dept 8-23-17

CRIMINAL LAW (JURORS, BATSON CHALLENGE, PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))/JURORS (CRIMINAL LAW, BATSON CHALLENGE, PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))/BATSON CHALLENGE (PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))

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HEALTH SERVICES PROVIDERS’ COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action alleging breach of an implied covenant of good faith and fair dealing should not have been dismissed.  Plaintiffs (heath services providers, hereinafter “the PC”) sued defendant health plan (Fidelis) alleging the health plan did not have grounds for terminating the PC’s contract. The court held the complaint stated a cause of action for breach of the implied covenant of fair dealing, as well as a cause of action alleging a violation of Public Health Law 4406-d:

Even if a party is not in breach of its express contractual obligations, it may be in breach of the implied covenant of good faith and fair dealing when it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain … . Technically complying with the terms of a contract while depriving the plaintiff of the benefit of the bargain may constitute a breach of the covenant of good faith and fair dealing … . Further, “[w]here the contract contemplates the exercise of discretion, this pledge includes a promise not to act arbitrarily or irrationally in exercising that discretion”… .

… The allegations in the complaint that the defendants acted in bad faith by terminating the agreement without justification and by fabricating information to try to justify the termination because the plaintiffs “were determined to be outliers’ with regard to the number and cost of those medical services provided by Plaintiffs to Defendants’ members” were sufficient to state a cause of action to recover damages for breach of contract based upon the alleged breach of the implied covenant of good faith and fair dealing. * * *

… [T]he PC stated a cause of action to recover damages for violation of Public Health Law § 4406-d. The PC is a health care professional that contracted with a health care plan and, therefore, falls within the purview of Public Health Law § 4406-d(2)(a). In addition, the PC is a member of the class for whose particular benefit the statute was enacted. The statute provides for enhanced health care provider protections … . Moreover, a private right of action would be consistent with the legislative scheme, since the statute offers no other practical means of enforcement such that a private right of action is necessary to trigger the protections intended to be afforded to health care providers … . Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 2017 NY Slip Op 06242, Second Dept 8-23-17

CONTRACT LAW (HEALTH SERVICES PROVIDERS’ COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT))/COVENANT OF GOOD FAITH AND FAIR DEALING (CONTRACT LAW, HEALTH SERVICES PROVIDERS’ COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT))/PUBLIC HEALTH LAW (HEALTH SERVICES PROVIDERS’ COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT))

CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT).

The Second Department determined that the filing of note of issue accompanied by a certificate of readiness which indicated more discovery was required was a nullity:

Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial … .

Here, the plaintiffs’ certificate of readiness stated, among other things, that discovery proceedings had not been completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity … . Rizzo v Balish & Friedman, 2017 NY Slip Op 06307, Second Dept 8-23-17

 

CIVIL PROCEDURE (CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT))/CERTIFICATE OF READINESS (CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT))/NOTE OF ISSUE  (CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT))

CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT).

The Second Department determined a California statute was a statute of limitations, not a statute of repose. A statute of limitations, unlike a statute of repose, is considered procedural in New York. Therefore the California statute would not be applied in a New York action. Because the California statute of limitations would not apply to the underlying New York action, the defendant-attorneys’ failure to raise the statute of limitations as a defense did not constitute malpractice:

“In New York, Statutes of Limitation are generally considered procedural because they are [v]iewed as pertaining to the remedy rather than the right” … . A statute of limitations “does not begin to run until a cause of action accrues” … . In contrast, “a statute of repose begins to run when the specified event or events takes place, regardless of whether a potential claim has accrued or, indeed, whether any injury has occurred” … . “The repose period serves as an absolute barrier that prevents a plaintiff’s right of action” … . “In other words, the period of repose has the effect of preventing what might otherwise have been a cause of action from ever arising” … . Statutes of repose “exhibit a substantive texture, nature and consequence that distinguishes them from ordinary limitation provisions” … . … [I]f a statute creates a cause of action and attaches a time limit to its commencement, the time is an ingredient of the cause” … . In contrast, when a cause of action “was cognizable at common law or by other statute law, a statutory time limit is commonly taken as one of limitations and must be asserted by way of defense” … . …

… California Code of Civil Procedure § 366.3 is a statute of limitations, not a statute of repose. Unlike a statute of repose, section 366.3 begins to run at the time the cause of action to recover on the promise to make a testamentary disposition accrues, namely, the date of the promisor’s death … . Nestor v Putney Twombly Hall & Hirson, LLP, 2017 NY Slip Op 06284, Second Dept 8-23-17

 

CIVIL PROCEDURE (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/CHOICE OF LAW ( CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/STATUTE OF LIMITATIONS  (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/STATUTE OF REPOSE (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))

WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT).

The Second Department noted that when a court grants a preliminary injunction the plaintiff must give an undertaking:

A party seeking the drastic remedy of a preliminary injunction has the burden of demonstrating, by clear and convincing evidence, (1) a likelihood of ultimate success on the merits, (2) the prospect of irreparable injury if the provisional relief is withheld, and (3) a balancing of the equities in the movant’s favor … . The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court … . Here, where the plaintiff established a likelihood of success on the merits and the irreparable harm it would suffer should the preliminary injunction not be granted, the equities tip in favor of the plaintiff and the court properly granted that branch of the plaintiff’s motion which sought a preliminary injunction … .

However, upon the granting of a preliminary injunction, a plaintiff “shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction” (CPLR 6312[b] … ). Mobstub, Inc. v www.staytrendy.com, 2017 NY Slip Op 06265, Second Dept 8-23-17

 

CIVIL PROCEDURE (WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT))/PRELIMINARY INJUNCTION (WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT))/UNDERTAKING (WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT))

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TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT).

The Second Department noted that testimony at a Municipal Law 50-h hearing cannot be relied upon to assert a cause of action not included in the notice of claim. Here the notice of claim alleged the city failed to provide timely medical care to plaintiff’s decedent, who died of a heart attack after he was arrested. Although plaintiff testified at the 50-h hearing that plaintiff’s decedent told a doctor he had been beaten by the police, the notice of claim made no mention of any causes of action based on that allegation:

“In making a determination on the sufficiency of a notice of claim, a court’s inquiry is not limited to the four corners of the notice of claim”… . A court may consider the testimony provided during an examination conducted pursuant to General Municipal Law § 50-h and any other evidence properly before it to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim… . However, in determining the sufficiency of a notice of claim, testimony during an examination conducted pursuant to General Municipal Law § 50-h cannot be used to substantively change the nature of the claim or the theory of liability set forth in the notice of claim … .

Here, the notice of claim was limited to allegations that the police officers involved in the decedent’s arrest failed to obtain timely medical assistance for the decedent while he was in their custody, and that the hospital staff negligently treated the decedent. There were no allegations, either express or implied, that the police had assaulted the decedent, or that the defendants negligently hired, supervised, or retained the police officers who were involved in the decedent’s arrest. The plaintiff’s testimony at the General Municipal Law § 50-h examination cannot be used to amend the theories of liability set forth in the notice of claim … . Davis v City of New York, 2017 NY Slip Op 06155, Second Dept 8-16-17

 

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))/50-H HEARING (NEGLIGENCE, MUNICIPAL LAW, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))

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QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT).

The Second Department determined defendants’ (Herman’s and Capuano’s) motions for summary judgment in this dental malpractice action were properly denied. With respect to the lack-of-informed consent cause of action, despite plaintiff’s signing of a consent form, the deposition testimony raised a question of fact whether plaintiff was properly informed before signing it:

“To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the actual procedure performed for which there was no informed consent was the proximate cause of the injury” … . “The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law” … .

Here, both Herman and Capuano failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent. Although Herman and Capuano each submitted a consent form signed by the plaintiff for the respective procedures, they also submitted, in support of their respective motions, the plaintiff’s deposition testimony, which revealed factual disputes as to whether the plaintiff was properly advised before signing each of the forms … . Mathias v Capuano, 2017 NY Slip Op 06174, Second Dept 8-16-17

 

NEGLIGENCE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/MEDICAL MALPRACTICE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/DENTAL MALPRACTICE (INFORMED CONSENT, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))

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NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant architect’s motion to set aside the verdict in this professional malpractice case should have been granted. Expert testimony was required and was not presented:

… [T]he plaintiff in this case alleged that the defendants committed professional malpractice by submitting defective plans to the New York City Department of Buildings (hereinafter the DOB), and by failing to diligently pursue the approval process and timely deal with objections raised by the DOB. Such questions are not within the competence of untutored laypersons to evaluate, as “common experience and observation offer little guidance” … .

The only expert proffered by the plaintiff conceded that he “didn’t see” the defendants’ plans, and when asked, for instance, to opine on whether the defendants’ plans “would have caused a problem” regarding the roof’s ability to bear the weight of certain HVAC equipment, he demurred, answering, “No, I only work for myself.” Moreover, the expert offered no opinion regarding the defendants’ alleged delay in getting their plans approved by the DOB. Given the absence of any expert testimony that the defendants departed from accepted architectural standards of practice … , the jury lacked any rational basis for its finding that the defendants committed professional malpractice … . Michael v He Gin Lee Architect Planner, PLLC, 2017 NY Slip Op 06177, Second Dept 8-16-17

 

NEGLIGENCE (ARCHITECT MALPRACTICE, EXPERT EVIDENCE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (ARCHITECT MALPRACTICE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PROFESSIONAL MALPRACTICE (ARCHITECTS, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EXPERT OPINION  (ARCHITECT MALPRACTICE, EXPERT EVIDENCE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ARCHITECTS (PROFESSIONAL MALPRACTICE,  NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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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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