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THE PLAINTIFF BICYCLIST COULD NOT IDENTIFY THE CAUSE OF HIS FALL AND THE CITY DID NOT HAVE WRITTEN NOTICE OF ANY ROADWAY DEFECTS IN THE AREA; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this bicycle-fall case should have been granted. Plaintiff could not identify the cause of his fall and the city did not have written notice of any roadway defects:

“In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgement as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall” without resorting to speculation … . Here, the injured plaintiff acknowledged at the General Municipal Law § 50-h hearing that he had no recollection of what caused his accident. He testified that he remembered riding his bicycle downhill somewhere on Forest Park Drive and waking up in an ambulance—but nothing in between. Given this lack of information, “it is just as likely that the accident [was] caused by some . . . factor [other than the conditions of the road], such as a . . . loss of balance” or control … . Accordingly, a finding that the City’s negligent maintenance of the roadway, if any, was responsible for the accident would be impermissibly based on speculation … . …

… [T]he defendants established their … entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against the City by presenting evidence that the City Department of Transportation had not received prior written notice of the defective roadway condition that allegedly caused the injured plaintiff’s accident  … . Xin Zheng Zhan v City of New York, 2021 NY Slip Op 06646, Second Dept 11-24-21

 

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