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It All Comes Down To Control and Record-Keeping (NY)

August 11, 2023

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If a defendant covers all their bases when moving for summary judgement to escape liability, a plaintiff cannot simply oppose the movant with a nebulous inference of a dispute of material facts. Once the defendant establishes their prima facie case, the burden shifts to the plaintiff – even if they believe they were victims of the incident.

For example, in <em><a href="">Hope v. Our Holy Redeemer R.C. Church</a>,</em> 2023 NY Slip Op 04197 (2d Dep’t August 9, 2023), the plaintiff was climbing the stairway from the basement to the first floor when she sustained injuries after tripping over dislodged tread on one of the stairs. Plaintiff sued the out-of-possession landlord, and in opposition, the landlord demonstrated that it had no control over the premises, assumed no duties to maintain it, and submitted affidavits asserting no knowledge of the subject lease or accident occurrence. To rebut defendant’s summary judgement motion, the plaintiff offered no disputes in material facts, and instead, only argued that defendant’s motion was premature. The Second Department correctly affirmed defendant’s motion because “mere hope or speculation” of possible relevant evidence is not enough to defeat a summary judgement motion.

On the same day, the Second Department ruled on <em><a href="">Lylan Pham v. Lee</a>,</em> 2023 NY Slip Op 04200 (2d Dep’t August 9, 2023), where the plaintiff originally sued for injuries sustained from a car accident at the intersection of Summer Avenue and Northern Boulevard in Manhasset, NY. After stopping at a stop sign, the plaintiff began to turn left into the intersection, and she collided with defendant’s vehicle that was going straight in the left lane. Plaintiff moved for summary judgement, and the defendant cross-moved for summary judgement to dismiss the complaint. The trial court denied both motions.

The Appellate Division granted defendant’s motion and affirmed the denial of plaintiff’s motion. The Second Department held that the defendant submitted sufficient evidence that showed plaintiff made a left turn directly into the path of defendant’s vehicle without yielding the right of way to defendant. Although plaintiff submitted an affidavit where she claimed defendant’s headlights were not lit during the accident, the court disregarded this information since she prior testified that she never saw defendant’s vehicle at any point prior to the accident. The court specifically held that an affidavit that merely “feigned issues of fact” was not enough to overcome her prior testimony to attempt to defeat summary judgement without sufficient justification for why her testimony is changing. For plaintiffs to clear the burdens from a defendant’s summary judgement motion, they must offer concrete evidence that disputes the defendant’s version of the facts.

Thanks to Alex Rabhan for his contribution to this article.  Should you have any questions, contact <a href="">John Diffley</a>.

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