The following papers numbered E14 to E22 and E24 to E25 read on this motion by defendant, pursuant to CPLR 3212, for summary judgment dismissing plaintiff’s complaint. Papers Numbered Notice of Motion — Affirmation — Exhibits E14 — E22 Affirmation in Opposition — Exhibit E24 Reply Affirmation E25 Upon the foregoing papers, it is ordered that the motion is determined as follows: This is a negligence action to recover money damages for injuries sustained on October 18, 2015 when plaintiff allegedly tripped and fell over a stone in a cemetery, located at 121-83 Springfield Boulevard, County of Queens, City and State of New York. Defendant cemetery moves for summary judgment dismissing plaintiff’s complaint on the ground that there are no triable issues of fact. Plaintiff testified at an examination before trial that the accident occurred in the mid-afternoon while he was looking for a grave site of a stillborn child named, Bonnie Sobel. Plaintiff further testified that he did not know where this child’s gravestone was located or when the child died and that he did not make any inquiries of anybody at the cemetery to assist him in finding that headstone. Plaintiff’s accident happened when he stepped over piping into a cornered off and enclosed plot that had children’s gravestones. Plaintiff testified that he had never been inside that plot before and that he did not know who owned it. Plaintiff acknowledged that the children’s gravestones were “quite smaller” stones that were approximately “18 inches high” and that the enclosed plot also contained baby graves. On a motion for summary judgment, the moving party must establish its prima facie entitlement to judgment as a matter of law (see Grob v. Kings Realty Assoc., 4 AD3d 394 [2d Dept 2004]). In the case at bar, plaintiff testified that his foot hit a gravestone that was lying horizontally rather than vertically. Plaintiff, however, was unable to identify which stone his foot came into contact with. Plaintiff further testified that although he “felt” his ankle hit a headstone, he did not see what caused him to fall. Where, as here, “it is just as likely that some other factor, such as a misstep or a loss of balance could have caused a trip and fall accident, any determination by the trier of factor as to causation would be based on sheer speculation” (see Goldberg v. Village of Mount Kisco, 125 AD3d 929 [2d Dept 2015], quoting Ash v. City of New York, 109 AD3d 854 [2d Dept 2013]). Moreover, the photographs submitted by plaintiff in opposition, depict three gravestones, which are sufficiently protruded from the ground. Therefore, plaintiff’s contention that the subject gravestones constituted a dangerous defect because they were not even or leveled, is unavailing. Any alleged “defect [herein] was open and apparent, possessed none of the characteristics of a trap or snare, and was too trivial to be actionable” (Cruz v. Deno’s Wonder Wheel Park, 297 AD2d 653 [2d Dept 2002]). Accordingly, the motion by defendant is granted and plaintiff’s complaint is hereby dismissed. Dated: July 10, 2020
