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Can a Decedent Maintain a Negligence Lawsuit if He Dies before Affirming the Defect? (NY)

March 29, 2019

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In <em><a href="">Perrelli v. Evangelista</a>, </em>the decedent fell on his landlord's driveway, and the injuries  ultimately caused his death. The estate brought an action to recover damages for wrongful death alleging the defendants negligently maintained the driveway. Defendants moved for summary judgment on the grounds that plaintiff failed to sufficiently identify the cause of the  fall. Plaintiff opposed the motion asserting that the <em>Noseworthy </em>doctrine (see see Noseworthy v City of New York, 298 NY 76) should apply, imposing a lighter burden of persuasion on the plaintiff since the plaintiff was not alive to testify as to the cause of his fall. Plaintiff submitted an expert affidavit in which the expert identified allegedly dangerous conditions affecting the driveway. Plaintiff also submitted the affidavit of plaintiff’s friend, who was present with the decedent the evening of the accident but did not witness the fall. The Supreme Court denied the defendants’ motion and defendants appealed.

The Appellate Division, Second Department, reversed the lower court’s decision denying defendant’s motion on the grounds that plaintiff could not identify what caused the decedent to fall. The Appellate Division reasoned that <em>Noseworthy </em>doctrine does not eliminate need to prove causation and expert’s opinion identifying different defects did not prove what caused decedent to fall. Since the trier of fact would be forced to speculate as to the cause of the accident, no triable issue of fact was raised.  Thanks to Margaret Adamczak for her contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions


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