Nicole Ciorciari, Plaintiffv.New York City Department of Parks & Recreation, the City of New York, World Ice Arena LLC and RD Management, Defendants
DECISION/ORDERMEMORANDUM DECISIONThis is an action for personal injury. Defendants, New York City Department of Parks & Recreation, The City of New York, World Ice Arena LLC and RD Management LLC (collectively “Defendants”), now move pursuant to CPLR 3212 for summary dismissal of the Complaint of plaintiff, Nicole Ciorciari (“Plaintiff”).Factual BackgroundPlaintiff alleges that on January 11, 2015, she was injured while ice skating at the World Ice Arena located in Queens, New York. Plaintiff claims she was gliding toward the exit of the ice rink, with the plexiglass partition separating the rink and the non-refrigerated floor surface on her left side, when her left foot began to slip (Mackin Aff., Ex. E, 29:19-22; 31:13-19). Plaintiff claims that as her left foot slipped, her right foot was unable to extend naturally because the front of her right ice skate became caught on a “crack in the ice” (id., 35:22-36:2). Plaintiff further claims that as a result of her foot becoming caught, she fell backwards, causing her ankle to fracture. Defendants the City of New York by and through the Department of Parks and Recreation entered into a licensing agreement with World Ice Arena, LLC (World Ice) wherein World Ice accepted the license to outfit, operate and manage, inter alia, an ice-skating rink located at World Ice Arena.Discussion“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v. Prospect Hosp, 68 NY2d 320, 324 [1986] [internal citations omitted]). Once prima facie entitlement has been established, in order to defeat the motion, the opposing party must” ‘assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial…and it is insufficient to merely set forth averments of factual or legal conclusions’ ” (Genger v. Genger, 123 AD3d 445, 447 [1st Dept 2014], quoting Schiraldi v. U.S. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978]).Defendants meet their prima facie burden demonstrating their entitlement to dismissal of the Complaint, as Plaintiff is unable to identify the cause of her accident. In a slip-and-fall case, “[i]t is well settled that a defendant is entitled to summary judgment as a matter of law when a plaintiff provides testimony that he or she is unable to identify the defect that caused his or her injury” (Siegel v. City of New York, 86 A.D.3d 452, 454 [1st Dept 2011]; see Reed v. Piran Realty Corp., 30 A.D.3d 319, 320 [1st Dept 2006]; see Morrissey v. New York City Tr. Auth., 100 A.D.3d 464, 464 [1st Dept 2012]; Washington v. New York City Bd. of Educ., 95 A..D.3d 739, 739-40 [1st Dept 2012]). Defendants submitted Plaintiff’s deposition testimony, wherein Plaintiff testified that she did not see what the front of her skate became caught on (Mackin Aff., Ex. E, 40:13-15), and in fact, that she did not know exactly what caught her skate (id., 41:6-10).Initially, Plaintiff’s testimony by itself fails to raise an issue of fact, as Plaintiff failed to demonstrate that she was able to identify the specific condition that caused her injury. The caselaw cited by Plaintiff to support its argument that it may be reasonably inferred from the evidence that there was a defective condition in the ice which caused her accident is inapposite, since in those cases the plaintiffs identified what caused their falls (see e.g. Taveras v. 1149 Webster Realty Corp., 134 A.D.3d 495, 496 [1st Dept 2015], affd, 28 N.Y.3d 958 [2016]; Figueroa v. City of New York, 126 A.D.3d 438, 440 [1st Dept 2015]; Brumm v. St. Paul’s Evangelical Lutheran Church, 143 A.D.3d 1224, 1227 [3rd Dept 2016]). Instead, Plaintiff’s testimony only establishes that that an employee of the ice-skating rink, Marc Lupenowicz (“Lupenowicz”), allegedly told Plaintiff’s mother that a crack existed in the ice before Plaintiff’s fall. Plaintiff testified as follows:Q. Did anything other than the ice play any role in your accident?A. Yes.Q. What?A. When i fell-as I was falling, I know my leg could not extend because the skate was stuck on something, which caused me to fall in a weird position, and causing me to fracture my ankle.Q. As you sit here today, am, do you know what it is that your skate caught on?A. Yes.Q. What is it?A. A crack in the ice.Q. As you sit here today, mam, how do you know there was a crack in the ice that your skate caught on?A. After I had fallen on the ice and I was taken to a separate area, an employee [Lupenowicz] had told my mother that he knew there was a crack in the ice, that it was discussed that morning, and that’s probably why that happened.(Mackin Aff., Ex. E, 35:13-36:3-11).There is no indication that Lupenowicz witnessed the cause of Plaintiff’s accident or that he observed the alleged crack at the location of Plaintiff’s accident. Lupenowicz testified that he did not see Plaintiff fall “firsthand” and that he was fifty to one-hundred feet away when he observed “somebody fall out of the corner of [his] eye” (Mackin Aff., Ex. I, 16:16-17-:6). When Lupenowicz was asked whether he observed any cracks in the ice where Plaintiff fell, he testified that “[a]ll I remember is the ice being in a slight decrease towards the saddle” (id., 19:23-20:4), which is not the alleged defective condition that Plaintiff claims caused her injury. Accordingly, Plaintiff is unable to identify the cause of her fall without resorting to speculation.However, Plaintiff’s identification of the location of her fall coupled with her expert’s affidavit identifying a defective condition in the area where she claims her accident occurred raises an issue of fact as to whether the accident was caused by the allegedly defective condition (see Berr v. Grant, 149 A.D.3d 536, 537 [1st Dept 2017] [holding that plaintiff's testimony identifying where he fell, with his expert's testimony identifying the "defects, dangerous conditions, and code violations at that site" were sufficient to establish a triable issue of fact]; Rodriguez v. Leggett Holdings, LLC, 96 A.D.3d 555, 556 [1st Dept 2012] [holding that plaintiff's testimony identifying the site of his fall, together with his expert's report finding building code violations at the location of his fall "provided sufficient circumstantial evidence to raise an issue of fact as to whether her fall was caused by the allegedly defective condition."], quoting Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 440 [1st Dept 2010]).Plaintiff testified that she fell on the ice located on the left side of the exit of the ice rink and circled the location of her fall on a photograph depicting the exit of the ice rink where she claims her accident occurred (Mackin Aff., Ex. E, 84:11-19; Ex., L). Moreover, Plaintiff submits the affidavit of her expert, Eric Heiberg, P.E. (“Heiberg”). Heiberg indicates that his inspection of the area where Plaintiff fell revealed, inter alia, two gaps located in between the ice and the mat covering the flooring, off the surface of the ice (Weg Aff., Ex. 1,
