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.