See Giordano v Giordano (2016 NY Slip Op 04177) decided on June 1, 2016 by the Appellate Division, Second Department. In this case the Plaintiff went into the garage at his mother’s house to obtain Christmas decorations from the garage attic. A ladder had already been set up by Plaintiff’s son. Upon climbing the ladder, when he was approximately 4-6 feet above the floor, the ladder “slipped” out from under him. Plaintiff landed on top of the ladder, and then rolled to the floor, when he noticed a slimy substance on the floor, which was under his pants legs. Plaintiff testified he believed the ladder was caused to slip due to the liquid from a bubble making machine stored in the garage.
In the decision, the Court recited “Hornbook Law” on a premises case, “With respect to the defendant’s motion for summary judgment dismissing the complaint, “[i]n order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence [A] defendant can [also] make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation.”
The Appellate Courts of this State have long held, “mere speculation as to the cause of a fall, where there can be many causes, is fatal to a cause of action. Kudrina v. 82-04 Lefferts Tenants Corp., 110 A.D.3d 963 (2d Dep’t 2013); Racines v. Lebowitz, 105 A.D.3d 934 (2d Dep’t 2013); McFadden v. 726 Liberty Corp., 89 A.D.3d 1067 (2d Dep’t 2011).”
In denying this appeal the Court stated: “Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff could not identify what had caused the ladder to move without engaging in speculation (see Viviano v KeyCorp, 128 AD3d 811, 812; Patrick v Costco Wholesale Corp., 77 AD3d 810, 811; Duncan v Toles, 21 AD3d 984). In opposition, the plaintiff submitted the deposition testimony of a nonparty witness, which raised a triable issue of fact as to whether the alleged slimy substance had caused the ladder to move and, consequently, the plaintiff to fall and sustain personal injuries (see generally Buglione v Spagnoletti, 123 AD3d 867). Additionally, a triable issue of fact exists as to whether the defendant, who did not inspect the garage within the week prior to the accident, had constructive notice of the alleged slimy condition (see Korn v Parkside Harbors Apts. LLC, 134 AD3d 769, 769-770; Campbell v New York City Tr. Auth., 109 AD3d 455; Yioves v T.J. Maxx, Inc., 29 AD3d 572, 573). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint.”
Read the decision here.