        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

324
CA 15-01568
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


ROSE RINALLO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ST. CASIMIR PARISH AND CATHOLIC DIOCESE
OF BUFFALO, DEFENDANTS-APPELLANTS.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KEVIN E. LOFTUS OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (BRIAN R. KRAEMER
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Deborah
A. Chimes, J.), entered July 1, 2015. The order denied defendants’
motion for summary judgment dismissing plaintiff’s complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she allegedly tripped and fell on a crack
in a step at defendant St. Casimir Parish, a church operated by
defendant Catholic Diocese of Buffalo. Defendants moved for summary
judgment dismissing the complaint, contending that plaintiff was
unable to establish the cause of her fall without engaging in
speculation. Defendants appeal from an order denying that motion, and
we now affirm.

      “ ‘In a slip and fall case, a defendant may establish its prima
facie entitlement to judgment as a matter of law by submitting
evidence that the plaintiff cannot identify the cause of his or her
fall’ without engaging in speculation” (Dixon v Superior Discounts &
Custom Muffler, 118 AD3d 1487, 1487; see Altinel v John’s Farms, 113
AD3d 709, 709-710). In a circumstantial evidence case, however,
“[the] plaintiff is not required to exclude every other possible cause
of the accident but defendant’s negligence . . . , [but the
plaintiff’s] proof must render those other causes sufficiently remote
or technical to enable the jury to reach [a] verdict based not upon
speculation, but upon the logical inferences to be drawn from the
evidence” (Smart v Zambito, 85 AD3d 1721, 1721 [internal quotation
marks omitted]; see Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743,
744).
                                 -2-                           324
                                                         CA 15-01568

     Here, plaintiff consistently testified that her shoe became
caught on a crack in the step, which caused her to fall. Although
there were no witnesses to the fall, and plaintiff could not remember
seeing the crack at the time of the accident, she testified that the
fall occurred in the immediate vicinity of a crack in the step, as
revealed by a photograph in the record, “thereby rendering any other
potential cause of [her] fall sufficiently remote or technical to
enable [a] jury to reach [a] verdict based not upon speculation, but
upon the logical inferences to be drawn from the evidence”
(Swietlikowski v Village of Herkimer, 132 AD3d 1406, 1407 [internal
quotation marks omitted]; see Nolan v Onondaga County, 61 AD3d 1431,
1432).




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
