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Speculation cannot serve as a basis to establish a prima facie case Peluso v. Red Rose Restaurant, 2013 NY Slip Op 03650

June 25, 2013 • Posted By Omar Chaudhry • Trial Practice

The Second Department rejected plaintiff’s speculation as to what happened when she fell down.  Plaintiff allegedly fell down when she exiting the defendant’s premises.  However, she could not recall what happened when she opened the door until she found herself on the sidewalk.  Defendants moved for summary judgment because plaintiff failed to establish proof of any defective condition that caused the plaintiff’s fall.  The Supreme Court granted the motion and the Second Department upheld the decision. 

Because plaintiff was unable to identify the cause of her accident without engaging in speculation, defendants established their entitlement to summary judgment.  This was done even though the plaintiff’s mother-in-law had been walking behind her.  The mother-in-law only stated how the plaintiff fell without providing any basis as to any unsafe condition causing the fall.