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THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL CALL COULD NOT BE IDENTIFIED, THE LIGHTER BURDEN OF PROOF PURSUANT TO THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted because the cause of plaintiff’s decedent’s fall could not be identified. The Noseworthy lighter burden of proof did not apply. Although plaintiff’s expert identified defects in the area where plaintiff’s decedent fell, none of the defects were demonstrated to have caused the fall:

Contrary to the plaintiff’s contention, the Noseworthy doctrine does not apply to the circumstances of this case, since the defendants’ knowledge concerning the cause of the decedent’s accident is no greater than that of the plaintiff … . Even accepting the defects identified in the plaintiff’s expert’s affidavit, the plaintiff failed to raise a triable issue of fact as to whether the decedent’s fall was proximately caused by those allegedly unsafe conditions … . ” Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation'” … . Perrelli v Evangelista, 2019 NY Slip Op 01807, Second Dept 3-13-19

 

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