Devol v Dolgencorp of N.Y. Inc.

Supreme Court, Warren County

Decided on March 20, 2026

Index No. EF2020-68287

Amy N. Quinn, J.

Before the Court is a motion pursuant to CPLR 3025[b] in which the plaintiff seeks to amend the complaintFN1 in this premises liability case, as well as defendant's cross-motion for summary judgment. Each party has opposed the other's application, and the Court has reviewed all supporting and opposing papers. The instant matter was reassigned to this Court on June 16, 2025 and oral argument on the motion took place on September 2, 2025.

Plaintiff claims that he was injured on September 19, 2017 after falling inside the front door of the Dollar General store located in the town of Chester, asserting that his fall was the result of defendant's failure to maintain said store premises in a reasonably safe condition. Plaintiff now seeks to amend the ad damnum clause of the operative complaint to seek punitive damages based on a 2024 Department of Labor report which references the defendant's business practices and on press coverage surrounding that report. Defendant's cross-motion for summary judgment asserts that plaintiff's failure to identify the cause of his fall is fatal to his case. In the interest of judicial economy, the Court will first consider the motion for summary judgment.

It is well-settled that summary judgment "is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op. v. Briarcliff Farms, 17 NY2d 57)" (Andre v. Pomeroy, 35 NY2d 361, 364). As the moving party, defendant "must make a prima facie showing of entitlement to judgment as a [*2]matter of law" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) by tendering "sufficient evidence to demonstrate the absence of any material issues of fact" (Rought v Price Chopper Operating Co., Inc., 73 AD3d 1414, 1414 [3d Dept 2010], quoting Walton v Albany Community Dev. Agency, 279 AD2d 93, 94-95 [3d Dept 2001]; CPLR 3212 [b]). "Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), and "if on record before the court, it cannot be determined that there are no issues of material fact, the motion must be denied (see, Udoff v. Zipf , 44 NY2d 117, 122)" (Long Island College Hosp. v. Axelrod, 118 AD2d 177, 182 [3d Dept 1986]). "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs, 46 NY2d 1065, 1067-1068). A defendant in a slip and fall case may "demonstrate entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation" (Mulligan v. R & D Props. of NY Inc., 162 AD3d 1301, 1301 [3d Dept. 2018] [internal quotation marks and citation omitted]; accord Benjamin v. Court Jester Athletic Club, Ltd., 217 AD3d 1206, 1206, [3d Dept. 2023]; Martinez v. Walmart, 227 AD3d 1254 [3d Dept 2024]; Pascucci v MPM Real Estate, LLC, 128 AD3d 1206, 1207 [3d Dept 2015]; Ash v City of New York, Trump Vil. Section 3, Inc., 109 AD3d 854 [2d Dept 2013]). "[A]lthough direct evidence of causation is not necessary, the evidence must be sufficient to permit a finding based on logical inferences from the record and not upon speculation alone" (Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 877 [3d Dept 2004] [internal quotation marks and citation omitted], lv dismissed 4 NY3d 869 [2005], Farrell v. Ted's Fish Fry, Inc, 196 AD3d 893 [3d Dept 2021]).

At plaintiff's deposition, he stated that "raining, definitely raining, and the wind was blowing" on the day in question. Asked whether one of his feet slipped at the time of his fall, he replied: "Yeah. All I knew was bang, my head hit the floor. I didn't have any awareness of foot, leg, something else moving. I just — bang — my head hit the floor. That's all I remember." When asked to clarify what caused his fall, plaintiff went on to answer: "All I can say is my head hit the floor. I can't say anything about causation . . . I was simply someone who hit their head on the floor." Plaintiff continued, offering that he heard "somebody" say that "they should have put the mat inside", later stating in the deposition that he did not know whether it was a customer or an employee who made that statement. When asked whether he simply did not know what caused him to fall, plaintiff answered: "No, I don't. I do not know. I think the floor wasn't mopped. I think the water coming inside was being blown in because the wind was coming from the south. These are all conjecture. I'm just theorizing."

Plaintiff was also asked if he had seen water on the floor at any point in time prior to his fall and he responded "No . . . I saw nothing. I just was on the floor with my head." Plaintiff states that he then went to use the restroom to check his injury in the mirror, after which he departed the store and returned to his car. Upon inquiry as to whether he observed water or any other substance on the floor on his way out of establishment, his deposition testimony is that "it was everywhere that I could see and that's why the person said they should have put the mat inside". However, when asked if that was something he observed after walking out of the restroom, he replied "I can't—I have to say that I don't know. I just came up with that idea. Definitely wasn't thinking about things like that when I was walking in, so it had to be after the [*3]accident." At the conclusion of the deposition, plaintiff was asked by his own attorney whether he saw water anywhere on the floor before leaving the store, and the plaintiff responded "I recall seeing water on the floor." This statement fails to identify the location of the water or that it was this water upon which he slipped. Taken as a whole, plaintiff's deposition offers theories but lacks critical observations.

In his reply affirmation, plaintiff offered that the he "remember[s] clearly" that rain occurred "the day before" his accident, and that the weather on the date in question was "cloudy but otherwise unremarkable". He states in a conclusory fashion for the first time that he "slipped and fell on a slick, wet floor" a few steps after entering the store, and newly identifies an unnamed store clerk as the individual who purportedly stated that "they should have put a mat inside the store." He further avers that, upon departing the store, he observed water in the area where he had fallen, and adds, again for the first time, that he later noticed his jacket was wet and dirty; he attributes the jacket's condition to a fall caused by water. Plaintiff explains these discrepancies by claiming that, during his deposition, he believed defense counsel was asking only about "what [he] knew at the time of the fall" and had "defense counsel been more precise in its questioning", he would have answered in a manner which aligns with the reply affidavit's contents.

Viewing the record viewed in the light most favorable to the plaintiff, the Court does not find the questioning at his deposition to have been confusing or unclear. On the contrary, he was directly asked what caused him to fall and his answers were equally direct: he repeatedly stated under oath that he did not know. The reply affidavit's new assertions cannot be reconciled with plaintiff's sworn deposition testimony, in which he stated that he did not see any water before or after the fall, did not observe any condition on the floor, and acknowledged that his theory regarding wind-blown rain was "conjecture" that he had "just come up with." Inasmusch as this reply affidavit directly contradicts prior sworn testimony in which he repeatedly makes clear that he does not know what caused him to fall, the Court accords it no weight and finds it insufficient to raise a triable issue of fact (Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d439,441[1968]; Mitthauer v T. Moriarty & Son, Inc., 69 AD3d 588 [2d Dept 2010]; Bloch v RT Long Island Franchise, LLC , 70 AD3d 993, 993 [2d Dept 2010].

Even if the Court were to consider the affidavit, it would not cure the fundamental defect in plaintiff's proof: he still fails to offer non-speculative evidence where in the store water existed or that such a condition caused his fall. The reply affidavit provided here merely layers new theories onto an already speculative record, and does not supply this Court with admissible, non-conjectural evidence required to defeat a motion for summary judgment. Wet, dirty clothing, particularly on a rainy day, is not evidence of causation and any post-fall observation of water does not establish a dangerous condition at the time of the accident. The new theory contained in his reply affidavit offers little more than a conclusion based upon his speculation or, at best, an after-the-fact surmise. Without the vital element of causation having been demonstrated by the record, defendant has established their prima facie entitlement to summary judgment (Cerkowski v. Price Chopper Operating Company, Inc., 68 AD3d 1382 [3d Dept 2009]; Feinberg v. 72nd Tenants Corporation, 235 AD3d 425 [1st Dept 2025].)FN2

Accordingly, it is hereby

ORDERED, that defendant's motion for summary judgment is hereby granted, and the complaint is dismissed without costs; and it is further

ORDERED, that the motion to amend the ad damnum clause is denied as moot.

The above constitutes the Decision and Order of the Court. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provision of that section with respect to filing, entry and notice of entry.

Decision and order signed on March 20, 2026 at Lake George, New York.

ENTER

Hon. Amy N. Quinn, A.J.S.C.

Judge of the Court of Claims

Papers considered on motion:

NYSCEF Doc Nos. 53-67, 73-82, 88-95