Jose v. Richards

307 A.D.2d 279, 762 N.Y.S.2d 281

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 14, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winslow, J.), dated June 20, 2002, which, inter alia, granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In opposition, the plaintiff failed to produce proof establishing the existence of a triable issue of fact (see Zuckerman v City of New York, supra). While a plaintiff who suffers from amnesia as the result of the defendant’s conduct is not held to as high a degree of proof in establishing his or her right to recover for his or her injuries as a plaintiff who can describe the events in question (see Noseworthy v City of New York, 298 NY 76 [1948]; Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 333 [1986]; Menekou v Crean, 222 AD2d 418, 419 [1995]), such a plaintiff is not relieved of the obligation to provide some proof from which negligence can reasonably be inferred (see Smith v Stark, 67 NY2d 693, 695 [1986]; Coughlin v Bartnick, 293 AD2d 509, 510 [2002]; Byrd v New York City Tr. Auth., 228 AD2d 537 [1996]). In this case, the affidavit of the plaintiffs accident reconstruction expert was insufficient to defeat the defendant’s motion for summary judgment (see Bavaro v Martel, 197 AD2d 813, 814 [1993]). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Santucci, J.P., Schmidt, Cozier and Rivera, JJ., concur.