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First Department Holds Conjecture is Insufficient to Raise a Triable Issue of Fact in Pedestrian Accident

March 29, 2024

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In McHugh v. Peduto Construction Corp, et al, Plaintiff alleged he tripped and fell over a pothole in the road near a construction site. Defendant/Third-Party Defendant Peduto Construction Corp. filed a motion for summary judgment on the grounds that it performed work only on the sidewalk, not in the road. In support of its motion, Peduto submitted documentary evidence and testimony reflecting that it was hired by Con Edison to mend a cut made by Con Edison on the sidewalk only. Despite this evidence, the Supreme Court denied Peduto’s motion.  


The Appellate Division, First Department, reversed, holding that Plaintiff failed to raise an issue of fact in response to Peduto’s motion for summary judgment. The Court held that in order to raise a triable issue of fact, Plaintiff had to prove a “finding of proximate cause based not upon speculation, but upon the logical inferences to be drawn from the evidence.” Flores v. City of New York, 29 A.D.3d 356, 358 (1st Dep’t 2006). The Court highlighted that deposition testimony that Con Edison would sometimes provide verbal instructions to contractors, without evidence Con Edison did so in the instant matter, was insufficient to raise an issue of fact because it was “merely surmise or conjecture.” McHugh v. Peduto Construction Corp. et al., 2024 NY Slip Op 01515 (1st Dep’t 2024). The Court further noted that such an inference contradicted Peduto’s testimony that verbal orders from Con Edison would be reflected in a work order inspected by Con Edison. Finally, the Court addressed Plaintiff’s argument that the “geographic and temporal proximity of Peduto’s work” created an issue of fact as to whether Peduto performed work in the subject location. Id. The Court held this argument was speculative and unavailing.

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