You are here: / / PLAINTIFF’S DEPOSITION TESTIMONY THAT HE DID NOT RECALL HOW OR WHERE...
, ,

PLAINTIFF’S DEPOSITION TESTIMONY THAT HE DID NOT RECALL HOW OR WHERE HE SLIPPED AND FELL AND DID NOT RECALL A FIGHT OR BEING HIT WERE FATAL TO THE SLIP AND FALL AND ASSAULT CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s deposition testimony that he didn’t recall how or where he slipped and fell, and, with respect to his assault cause of action, did not recall the fight or being hit, was fatal to the complaint:

In a slip-and-fall case, a plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation … . Here, with regard to that branch of their motion which was for summary judgment dismissing the cause of action alleging negligence, the defendants established, prima facie, that the plaintiff could not identify the cause of his alleged fall without engaging in speculation … . …

“To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . Here, the plaintiff testified at his deposition that he could not recall a physical altercation at the premises on the date of the alleged incident and did not “recall being hit.” Barnett v Fusco, 2022 NY Slip Op 04147, Second Dept 6-29-22

Practice Point: In a slip and fall case, the failure to recall the cause of the fall requires dismissal. In an assault and battery case, the failure to recall the fight or being hit requires dismissal.

 

You might also like
Store Not Required to Continuously Mop Up Tracked-In Rain
AMENDMENT OF THE INDICTMENT ON THE EVE OF TRIAL CHANGED THE THEORY OF PROSECUTION FROM ACTUAL POSSESSION OF A WEAPON TO CONSTRUCTIVE POSSESSION OF A WEAPON, CONVICTION REVERSED (SECOND DEPT).
PLAINTIFF’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 IN THIS FORECLOSURE ACTION WAS INSUFFICIENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PROVISIONS OF POLICY MANUAL DID NOT CONSTITUTE ENFORCEABLE OBLIGATIONS.
THE ASSAULT SECOND CONVICTION WAS REVERSED BECAUSE PROOF A BAMBOO STICK WAS A “DANGEROUS INSTRUMENT” WAS LEGALLY INSUFFICIENT; ASSAULT THIRD CONVICTION VACATED AS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND (SECOND DEPT).
THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE MOTHER’S PARENTAL ACCESS; THE JUDGE LEFT IT TO MOTHER AND HER CHILD TO DETERMINE MOTHER’S PARENTAL ACCESS (SECOND DEPT).
THE UNIVERSITY REVIEW BOARD’S FINDING THAT PETITIONER VIOLATED THE STUDENT CODE BY ENGAGING IN SEXUAL MISCONDUCT REVERSED, VIOLATIONS DISMISSED, RECORD EXPUNGED; THERE WAS A DISSENT (SECOND DEPT). ​
THE ESTATE OF THE HUSBAND WAS NOT A NECESSARY PARTY IN THIS FORECLOSURE ACTION; THE PROPERTY PASSED TO THE WIFE UPON THE HUSBAND’S DEATH (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH THE SPECIFIC CRIME, I.E., THE SHOOTING OF PLAINTIFF’S DECEDENT... UNDER THE NYC ADMINISTRATIVE CODE, ABUTTING PROPERTY OWNERS ARE LIABLE FOR THE...