The following e-filed documents, listed by NYSCEF document number (Motion 002) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55 were read on this motion to/for JUDGMENT — SUMMARY. DECISION ORDER ON MOTION t his is an action for personal injuries allegedly sustained by Plaintiff John Napoli on October 11, 2014, when he tripped and fell in the backyard of Defendant Maria Moretta while delivering food for an event. Defendant now moves for summary judgment on the grounds that Plaintiff is unable to identify the reason why he fell. Additionally, Defendant moves for leave to amend her Verified Answer to assert the affirmative defense of worker’s compensation. The motion has been fully submitted. BACKGROUND On the date of the incident, Plaintiff was employed by A&S Italian Fine Foods in Huntington Station, New York, while Defendant served as the president of that A&S franchise. Defendant requested catering for her daughter’s engagement party from A&S and Plaintiff was responsible for making the delivery to Defendant’s house. Plaintiff was carrying a platter of food in the backyard when he fell, allegedly causing injuries predominantly on the right side of his body. (NYSCEF Doc No. 41 at 6.) Plaintiff filed his Verified Complaint on May 26, 2017 and Defendant now moves for summary judgment. DISCUSSION Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977].) The court must view the evidence in the light most favorable to the nonmoving party, and must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence. (Sosa v. 46th St. Dev. LLC, 101 AD3d 490, 492 [1st Dept 2012].) “It is settled that negligence cases by their very nature do not lend themselves to summary dismissal since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination.” (McCummings v. New York City Transit Auth., 81 NY2d 923, 926 [1993], quoting Ugarrizza v. Schmieder, 46 NY2d 471, 474 [1979].) Although the issue of proximate cause is “almost invariably a factual issue…a plaintiff’s inability to identify the cause of a fall is fatal to an action because a finding that the defendant’s negligence proximately caused a plaintiff’s injuries would be based on speculation.” (Haibi v. 790 Riverside Drive Owners, Inc., 156 AD3d 144, 147 [1st Dept 2017] [internal citations omitted].) It is well established that owners and lessees have a duty to maintain their property in a reasonably safe condition (Tagle v. Jakob, 97 NY2d 165, 168 [2001]). A defendant moving for summary judgment has the initial burden of showing that it did not create a dangerous condition, or have actual or constructive notice of a dangerous condition.” (Rodriguez v. 705-7 E. 179th St. Hous. Dev. Fund Corp., 79 AD3d 518 [2010]). … A condition that is visible to one “reasonably using his or her senses” is not inherently dangerous (Tagle, 97 N.Y2d at 170). However, a step may be dangerous where the conditions create “optical confusion” — the illusion of a flat surface, visually obscuring the step (Brooks v. Bergdorf-Goodman Co., 5 AD2d 162, 163 [1st Dept 1958]). “[F]indings of liability have typically turned on factors, such as inadequate warning of the drop, coupled with poor lighting, inadequate demarcation between raised and lowered areas, or some other distraction or similar dangerous condition” (Schreiber v. Philip & Morris Rest. Corp., 25 AD2d 262, 263, [1st Dept 1966]). (Langer v. 116 Lexington Ave., Inc., 92 AD3d 597, 598 [1st Dept 2012].) Once a defendant has made a prima facie showing, the burden shifts to the plaintiff to “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].) Here, the court finds that Defendant established her prima facie entitlement to summary judgment by submitting evidence demonstrating that the step in question was not inherently dangerous to one reasonably using his or her senses. Defendant testified that there was nothing wrong with the walkway, as she regularly used it and inspected it shortly before hosting the engagement party, and that she had never received any complaints prior to the date of the party. (NYSCEF Doc No. 46, Maria Moretta deposition tr at 20:11-24; 21:14-17.) Defendant also cites to Plaintiff’s March 29, 2018 deposition, wherein he testified that he could see where he was going and that he had initially traversed the area in which he fell without incident, but that he fell upon his second trip into that area. (NYSCEF Doc No. 39 at
