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Jose v. Richards

Appellate Division of the Supreme Court of New York, Second Department
Jul 14, 2003
307 A.D.2d 279 (N.Y. App. Div. 2003)

Opinion

2002-07742

Argued June 6, 2003.

July 14, 2003.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winslow, J.), dated June 20, 2002, which, inter alia, granted the defendant's motion for summary judgment dismissing the complaint.

Brown Brown, Brooklyn, N.Y. (Harry L. Brown and Ira Greene of counsel), for appellant.

O'Dwyer Bernstein, LLP (Gilroy Downes Horowitz Goldstein, New York, N.Y. [Michael M. Horowitz] of counsel), for respondent.

Before: FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, BARRY A. COZIER, REINALDO E. RIVERA, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to demonstrate the absence of any material issues of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Zuckerman v. City of New York, 49 N.Y.2d 557, 562). In opposition, the plaintiff failed to produce proof establishing the existence of a triable issue of fact ( see Zuckerman v. City of New York, supra). While a plaintiff who suffers from amnesia as the result of the defendant's conduct is not held to as high a degree of proof in establishing his or her right to recover for his or her injuries as a plaintiff who can describe the events in question ( see Noseworthy v. City of New York, 298 N.Y. 76; Sawyer v. Dreis Krump Mfg. Co., 67 N.Y.2d 328, 333; Menekou v. Crean, 222 A.D.2d 418, 419), such a plaintiff is not relieved of the obligation to provide some proof from which negligence can reasonably be inferred (see Smith v. Stark, 67 N.Y.2d 693, 695; Coughlin v. Bartnick, 293 A.D.2d 509, 510; Byrd v. New York City Tr. Auth., 228 A.D.2d 537). In this case, the affidavit of the plaintiff's accident reconstruction expert was insufficient to defeat the defendant's motion for summary judgment ( see Bavaro v. Martel, 197 A.D.2d 813, 814). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

SANTUCCI, J.P., SCHMIDT, COZIER and RIVERA, JJ., concur.


Summaries of

Jose v. Richards

Appellate Division of the Supreme Court of New York, Second Department
Jul 14, 2003
307 A.D.2d 279 (N.Y. App. Div. 2003)
Case details for

Jose v. Richards

Case Details

Full title:EMMANUEL JOSE, appellant, v. KIRK J. RICHARDS, respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 14, 2003

Citations

307 A.D.2d 279 (N.Y. App. Div. 2003)
762 N.Y.S.2d 281

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