A plaintiff’s success in a premises liability case largely depends on their ability to establish a clear causal link between the alleged hazardous condition and the injury. The Second Department’s recent decision in Abramowitz v. Esposito, M.D., P.C., 234 A.D.3d 652 (2d Dept. 2025) underscores a crucial legal principle: a plaintiff's inability to identify the cause of their accident is fatal to their claim.
Abramowitz v. Esposito, M.D., P.C. adds to a growing body of case law in the Second Department holding that plaintiff's inability to identify the cause of a fall is fatal to an action because a finding that the defendant's negligence proximately caused a plaintiff's injuries would be based on speculation. Relying on predecessors to Abramowitz, we successfully opposed the plaintiff’s motion for summary judgment in Coiro v. Personal-Touch Home Care.
Both decisions underline the importance of focusing on evidentiary gaps when defending premises liability claims. For defense counsel, they highlight an effective strategy to challenge claims lacking a solid factual foundation.
The First Department has taken a more cautious approach and has been less inclined to grant summary judgment solely on the basis that a plaintiff was unable to identify the precise cause of the accident. Rather, the First Department often considers whether circumstantial evidence could support the plaintiff’s claims, even in the absence of direct identification of the condition that caused the accident.
Abramowitz v. Esposito Case Background
The plaintiff, Linda Abramowitz, alleged she sustained injuries after tripping and falling while exiting a building. The defendants included the building owner and a medical practice, which was a tenant of the building. Abramowitz alleged that she tripped off a single-step riser outside the building. At her deposition, she acknowledged the existence of an uneven step but admitted she was uncertain whether it caused her fall, testifying “I was aware that the step was always a little unlevel…but no, I don’t know what caused [the accident].” She also testified the step was free of any cracks, dirt, debris or refuse.
Plaintiff’s expert witness, without addressing any of the testimony, opined a defectively designed exit door created a tripping hazard which cause plaintiff’s fall.
After discovery, the defendants moved for summary judgment, asserting that the plaintiff could not identify the specific cause of her accident without resorting to speculation. The Supreme Court, Queens County, granted the motion, and the Appellate Division, Second Department affirmed the decision on appeal.
The Court’s Analysis
In affirming the lower court’s grant of summary judgment to defendants, the Second Department, citing Barretta v Michaels Stores, 230 A.D.3d 1208 (2d Dept. 2024), and a long line of Second Department decisions, emphasized that a plaintiff's inability to identify the cause of his or her accident is fatal to a plaintiff’s claim.
In premises liability cases, defendants may establish entitlement to summary judgment by demonstrating either: (1) they did not create or have notice of a dangerous condition, or (2) the plaintiff cannot identify the cause of their accident without engaging in speculation.
The court reviewed plaintiff’s deposition, in which she admitted she tripped off a step but could not specify what caused her fall and the step was free of cracks, dirt, debris, and/or refuse. Based on this testimony, the court concluded any determination of causation would be speculative. Although plaintiff submitted an expert affidavit, it was without foundation, conclusory and insufficient to raise a triable issue of fact.
Notably, the Second Department also found that the Supreme Court improvidently exercised its discretion in two respects. First, the court should not have declined to consider the plaintiffs’ opposition papers solely because they exceeded the word count limit imposed by 22 NYCRR 202.8-b(a). Second, it was improper to deem the plaintiffs to have admitted to the factual allegations in the defendants’ statement of material facts based on plaintiffs’ failure to include a counterstatement of material facts as required by 22 NYCRR 202.8-g(b). Nevertheless, these procedural issues did not alter the outcome, as the appellate court found that the plaintiffs still failed to raise a triable issue of fact.
Practical Considerations in Defending Premises Liability Cases
The decisions in Abramowitz and Coiro highlight that defendants should aim to identify gaps in the plaintiff’s causation claims during discovery. Defense counsel should look carefully at concrete evidence linking the plaintiff’s injury to a specific hazardous condition, such as plaintiff’s or witness testimony, photographs or expert reports. For expert reports, it is important to assess whether the expert opinions offered are conclusory or lack a factual foundation, as the court found in Abramowitz. Furthermore, defense counsel can tailor their questions when deposing plaintiffs to probe plaintiff’s proof of a causal link between plaintiff’s alleged injury and the alleged hazardous condition. In the absence of such proof, defense counsel, in a summary judgment motion, should emphasize the speculative nature of the plaintiff’s claims.
Liliya Nesterov
Fern Flomenhaft
Abramowitz v. Esposito, M.D., P.C. adds to a growing body of case law in the Second Department holding that plaintiff's inability to identify the cause of a fall is fatal to an action because a finding that the defendant's negligence proximately caused a plaintiff's injuries would be based on speculation. Relying on predecessors to Abramowitz, we successfully opposed the plaintiff’s motion for summary judgment in Coiro v. Personal-Touch Home Care.
Both decisions underline the importance of focusing on evidentiary gaps when defending premises liability claims. For defense counsel, they highlight an effective strategy to challenge claims lacking a solid factual foundation.
The First Department has taken a more cautious approach and has been less inclined to grant summary judgment solely on the basis that a plaintiff was unable to identify the precise cause of the accident. Rather, the First Department often considers whether circumstantial evidence could support the plaintiff’s claims, even in the absence of direct identification of the condition that caused the accident.
Abramowitz v. Esposito Case Background
The plaintiff, Linda Abramowitz, alleged she sustained injuries after tripping and falling while exiting a building. The defendants included the building owner and a medical practice, which was a tenant of the building. Abramowitz alleged that she tripped off a single-step riser outside the building. At her deposition, she acknowledged the existence of an uneven step but admitted she was uncertain whether it caused her fall, testifying “I was aware that the step was always a little unlevel…but no, I don’t know what caused [the accident].” She also testified the step was free of any cracks, dirt, debris or refuse.
Plaintiff’s expert witness, without addressing any of the testimony, opined a defectively designed exit door created a tripping hazard which cause plaintiff’s fall.
After discovery, the defendants moved for summary judgment, asserting that the plaintiff could not identify the specific cause of her accident without resorting to speculation. The Supreme Court, Queens County, granted the motion, and the Appellate Division, Second Department affirmed the decision on appeal.
The Court’s Analysis
In affirming the lower court’s grant of summary judgment to defendants, the Second Department, citing Barretta v Michaels Stores, 230 A.D.3d 1208 (2d Dept. 2024), and a long line of Second Department decisions, emphasized that a plaintiff's inability to identify the cause of his or her accident is fatal to a plaintiff’s claim.
In premises liability cases, defendants may establish entitlement to summary judgment by demonstrating either: (1) they did not create or have notice of a dangerous condition, or (2) the plaintiff cannot identify the cause of their accident without engaging in speculation.
The court reviewed plaintiff’s deposition, in which she admitted she tripped off a step but could not specify what caused her fall and the step was free of cracks, dirt, debris, and/or refuse. Based on this testimony, the court concluded any determination of causation would be speculative. Although plaintiff submitted an expert affidavit, it was without foundation, conclusory and insufficient to raise a triable issue of fact.
Notably, the Second Department also found that the Supreme Court improvidently exercised its discretion in two respects. First, the court should not have declined to consider the plaintiffs’ opposition papers solely because they exceeded the word count limit imposed by 22 NYCRR 202.8-b(a). Second, it was improper to deem the plaintiffs to have admitted to the factual allegations in the defendants’ statement of material facts based on plaintiffs’ failure to include a counterstatement of material facts as required by 22 NYCRR 202.8-g(b). Nevertheless, these procedural issues did not alter the outcome, as the appellate court found that the plaintiffs still failed to raise a triable issue of fact.
Practical Considerations in Defending Premises Liability Cases
The decisions in Abramowitz and Coiro highlight that defendants should aim to identify gaps in the plaintiff’s causation claims during discovery. Defense counsel should look carefully at concrete evidence linking the plaintiff’s injury to a specific hazardous condition, such as plaintiff’s or witness testimony, photographs or expert reports. For expert reports, it is important to assess whether the expert opinions offered are conclusory or lack a factual foundation, as the court found in Abramowitz. Furthermore, defense counsel can tailor their questions when deposing plaintiffs to probe plaintiff’s proof of a causal link between plaintiff’s alleged injury and the alleged hazardous condition. In the absence of such proof, defense counsel, in a summary judgment motion, should emphasize the speculative nature of the plaintiff’s claims.
Liliya Nesterov
Fern Flomenhaft
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