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Expert Affidavit Trumps Speculation Defense


June 21, 2012 at 8:00:10 PM

In <em>Rodriguez v. Leggett Holdings, LLC, </em>the First Department reinstated plaintiff’s complaint despite the fact that plaintiff was unable to identify the cause of his fall down a set of stairs. Although defendants established their prima facie entitlement to summary judgment since plaintiff’s deposition testimony revealed that he was unable to identify the precise cause of his fall, plaintiff’s expert engineering affidavit, which attributed various defects and building code violations (without specifically referencing the code sections or precise measurements taken) as the cause of the accident, was sufficient to raise a triable issue of fact as to whether the alleged defective conditions caused the fall. Chiseling away at the proposition that a defendant is entitled to summary judgment where a plaintiff’s claims are based on speculation and conjecture, the First Department held that in this instance, summary judgment was not appropriate because plaintiff was able to identify the general site of his fall, and his expert was then able to identify defective conditions on the stairway. Plaintiffs, who now have the ability to submit expert affidavits in order to defeat motions that may have once been favorably decided for the defense, will undoubtedly rely upon this case in the First Department.

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