PLAINTIFF DOESN'T KNOW WHY SHE FELL; SIDEWALK ACCIDENT CASE AGAINST NEW YORK CITY DISMISSED

Court: Supreme Court, Appellate Division, First Department, New York

Case: Melissa Smith v. the City of New York

Date: Jan. 10, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

Comment: This case is an obvious loser. My only mystery is why the accident victim's attorney even started it. The rule is simple: "If you don't know why you fell, you can't sue for the accident."

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RELATED POSTS:

SUMMARY JUDGMENT DENIED IN LABOR LAW CONSTRUCTION ACCIDENT; PLAINTIFF DIDN'T KNOW WHERE FALLING BUCKET CAME FROM (Posted by Brooklyn injury attorney Gary E. Rosenberg on Oct 26, 2011)

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Order, Supreme Court, New York County (Karen Smith, J.), entered May 12, 2010, which granted defendants' motions for summary judgment dismissing the complaint and all cross claims, and denied plaintiff's cross motion for summary judgment on the issue of liability, and order, same court (Geoffrey D. Wright, J.), entered April 14, 2011, which granted plaintiff's motion to renew and reargue her cross motion and adhered to the prior decision, unanimously affirmed, without costs.

Plaintiff testified at her deposition that she had "no idea" how she tripped and fell and she could not identify or mark on photographs the specific rise, declivity or defective condition of the sidewalk that caused her accident. She stated that she did not feel her foot go into a depression, catch or strike anything, slip, or slide. Citing this testimony, defendants sustained their burden of demonstrating entitlement to summary judgment as a matter of law because a jury would have to engage in impermissible speculation to determine the cause of the accident (see Siegel v. City of New York, 86 A.D.3d 452, 454_455, 928 N.Y.S.2d 1 [2011]; Fishman v. Westminster House Owners, Inc., 24 A.D.3d 394, 806 N.Y.S.2d 550 [2005]; Rudner v. New York Presbyt. Hosp., 42 A.D.3d 357, 358, 840 N.Y.S.2d 319 [2007]).

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RELATED POSTS:

INJURED ACCIDENT VICTIM ACCIDENTALLY FELL ON FLOOR IN MACY'S & CAN'T SAY WHAT CAUSED FALL -- CASE DISMISSED ON SUMMARY JUDGMENT (Posted by Brooklyn injury attorney Gary E. Rosenberg on Nov 10, 2011)

ACCIDENT VICTIM WHO CAN'T SAY WHY OR WHERE SHE FELL LOSES TO DEFENSE SUMMARY JUDGMENT MOTION (Posted by Brooklyn injury attorney Gary E. Rosenberg on Jan 23, 2012)

CLAIMS OF PRISONER WITH ARTIFICIAL LEG AGAINST NEW YORK STATE FOR FALL DOWN STAIRWAY FAILS WHERE NO DEFECT IN STAIRWAY IS ALLEGED (Posted by Brooklyn injury attorney Gary E. Rosenberg on Oct 17, 2011)

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The doctrine of res ipsa loquitur, which requires a showing that the event is the kind which ordinarily does not occur in the absence of someone's negligence, was caused by an agency or instrumentality within the exclusive control of defendant, and was not due to any voluntary action or contribution on the part of the plaintiff (see Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200 [1986]), is inapplicable here because it is not uncommon for trips and falls to occur without negligence where there is a misstep or loss of balance, and because the area where the accident occurred was not in the exclusive control of any defendant.

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