Smith v Maloney

Smith v Maloney 2012 NY Slip Op 00454 Decided on January 26, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 26, 2012
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[*1]KATHLEEN P. SMITH, Appellant,

v

PAULINE MALONEY, Respondent.

Calendar Date: November 15, 2011
Before: Spain, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ.


Basch & Keegan, L.L.P., Kingston (Derek J. Spada of
counsel), for appellant.
Robert A. Pierce & Associates, White Plains (John J.
McKenna of counsel), for respondent.

MEMORANDUM AND ORDER


Malone Jr., J.

Appeal from an order of the Supreme Court (Zwack, J.), entered October 4, 2010 in Ulster County, which granted defendant's motion for summary judgment dismissing the complaint.

On a rainy day in August 2008, after attending church services together, plaintiff drove defendant home and waited in the driveway for defendant to enter the house safely. When defendant called to plaintiff from her doorway to say that her electricity was not working, plaintiff grabbed her umbrella, exited her vehicle and proceeded toward the house to investigate the problem. Plaintiff allegedly tripped and fell on a walkway that was adjacent to, and slightly raised above, the driveway. As a result of the injuries she sustained, plaintiff commenced this action, alleging, among other things, that defendant negligently maintained her property. Supreme Court granted defendant's subsequent motion for summary judgment dismissing the complaint. Plaintiff appeals and we affirm.

"In a trip and fall case, [a] plaintiff's inability to identify the cause of his or her fall is fatal to his or her cause of action, since, in that instance, the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation" (Boudreau-Grillo v Ramirez, 74 AD3d 1265, 1267 [2010] [internal quotation marks and citations omitted]; see Louman v Town of Greenburgh, 60 AD3d 915, 916 [2009]). The record here reveals that the [*2]walkway on which plaintiff allegedly tripped and fell was not obviously defective and that plaintiff was unable to identify the cause of her fall. At her deposition, plaintiff admitted that she did not know what had caused her to fall and indicated that she was unsure that she actually tripped on anything, although she "imagine[d]" that she tripped on the edge of the walkway. When asked if her shoe had caught on something, plaintiff admitted that she had "no idea" and did not remember feeling her foot come into contact with anything before she fell. On this record, we agree with Supreme Court that a jury would be required to speculate as to the cause of plaintiff's fall. Accordingly, summary judgment was appropriate (see Dalinedesroches v Lazard, 70 AD3d 626 [2010]; see also Norse v Saratoga Harness Racing, Inc., 81 AD3d 1063, 1063-1064 [2011]).

Spain, J.P., Lahtinen, Stein and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, with costs.