Goldfischer v Great Atl. & Pac. Tea Co., Inc.
2009 NY Slip Op 05192 [63 AD3d 575]
June 23, 2009
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 5, 2009

Barbara Goldfischer et al., Appellants,
The Great Atlantic & Pacific Tea Company, Inc., et al., Respondents.

[*1] Kelley Drye & Warren LLP, New York (James M. Keneally of counsel), for appellants.

Boeggeman, George & Corde, P.C., White Plains (Cynthia Dolan of counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered November 17, 2008, which, in a personal injury action for plaintiff's trip and fall in a supermarket owned and managed by defendants, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In opposition to defendants' prima facie showing that plaintiff failed to identify the cause of her fall, plaintiff failed to raise a triable issue of fact. Unaware of what caused her fall, she merely surmised that it was caused by the bump in the rubber floor mat that she observed for the first time after she fell. Coplaintiff husband testified that he did not observe what seemed to be a crease in the mat until after his wife fell, and could not identify where the crease was on the mat or whether it was higher than one inch or "accurately describe it that specifically." The failure to identify the condition that caused plaintiff's fall is fatal to plaintiffs' claim (see Kwitny v Westchester Towers Owners Corp., 47 AD3d 495, 495-496 [2008]; Pena v Women's Outreach Network, Inc., 35 AD3d 104, 109-111 [2006]). Concur—Tom, J.P., Friedman, Catterson, Moskowitz and Richter, JJ.