Opinion
11721 Index 150978/16
06-25-2020
Christopher VISONE, Plaintiff–Appellant, v. THIRD & TWENTY EIGHT LLC, et al., Defendants–Respondents.
Parker Waichman LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellant. Farber Brocks & Zane L.L.P., Garden City (Lester Chanin of counsel), for respondents.
Parker Waichman LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellant.
Farber Brocks & Zane L.L.P., Garden City (Lester Chanin of counsel), for respondents.
Renwick, J.P., Mazzarelli, Webber, Kern, Moulton, JJ.
Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered January 30, 2019, dismissing the complaint, and bringing up for review an order, same court and Justice, entered December 10, 2018, which granted defendants' motion for summary judgment to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff was not entitled to a Noseworthy inference (see Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 [1948] ) because he failed to offer expert medical evidence establishing, by clear and convincing evidence, that his lack of memory of his accident is causally related to his accident (see Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 333–335, 502 N.Y.S.2d 696, 493 N.E.2d 920 [1986] ; Tselebis v. Ryder Truck Rental, Inc., 72 A.D.3d 198, 199, 895 N.Y.S.2d 389 [1st Dept. 2010] ). Accordingly, plaintiff's inability to identify the cause of his fall is fatal to this action, as it is at least as likely, if not more so under the circumstances of this case, that his accident was caused by his own voluntary intoxication following a day of participating in "SantaCon," as it was the result of defendants' negligence in maintaining its premises (see Grande v. Won Hee Lee, 171 A.D.3d 877, 97 N.Y.S.3d 230 [2d Dept. 2019] ; McNally v. Sabban, 32 A.D.3d 340, 820 N.Y.S.2d 260 [1st Dept. 2006] ).
We have considered plaintiff's remaining contentions and find them unavailing.