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Plaintiff Failed to Raise a Triable Issue of Fact in Wrongful Death Action: Second Department Reverses Lower Court’s Decision

March 28, 2019 • Posted By • Risk Managment

ANTHONY M. PERRELLI, ETC. v. ARMANDOE EVANGELISTA

N.Y.L.J – March 15, 2019

 

This is an action to recover damages for wrongful death. Armandoe Evangelista appealed from an order of the Supreme Court of Queens County denying motion for summary judgment in Evangelista’s favor. The Second Department reversed the Lower Court’s decision and granted Evangelista’s motion for summary judgement dismissing the complaint. 

Anthony M. Perrelli, as administrator of the decedent’s estate, commenced this action to recover damages for wrongful death against Armandoe Evangelista. The decedent fell on the driveway of premises owned by Evangelista. The decedent sustained injuries, which ultimately caused his death. Perrelli alleged that Evangelista was negligent in the maintenance of the driveway.

Evangelista moved for summary judgment dismissing the complaint, asserting “that the plaintiff had failed to sufficiently identify the cause of the decedent’s fall.” Perrelli opposed the motion, asserting that the Noseworthy doctrine should apply to the circumstances of this case. The Noseworthy doctrine holds that a plaintiff in a wrongful death action is not held to as high a burden of proof as in other actions because the deceased plaintiff is not available to recount his version of the relevant events, in this instance the cause of deceased plaintiff’s fall. (See Noseworthy v. City of New York, 298 NY 76). Additionally, Perrelli submitted an expert affidavit, in which the expert identified allegedly dangerous conditions affecting the driveway, and the affidavit of the decedent’s friend, who was present with the decedent the evening of the accident but did not witness the decedent’s fall. The Supreme Court of Queens County denied Evangelista’s motion for summary judgment.

The Second Department reversed the Lower Court’s judgment as a matter of law. The Second Department determined that Evangelista established “prima facie entitlement to judgment as a matter of law dismissing the complaint” by demonstrating that Perrelli could not identify what caused the decedent to fall. (see Baterna v. Maimonides Med. Ctr., 139 AD3d 653, 653). In opposition to the motion, Perrelli failed to raise a triable issue of fact. (see Baldwin v. Windcrest Riverhead, LLC, 123 AD3d 859, 861). Additionally, the Court held that “the Noseworthy doctrine does not apply to the circumstances of the case,” because Evangelista’s knowledge of the cause of the decedent’s accident is no greater than Perrelli’s. (see Hod v. Orchard Fields, LLC, 111 AD3d 794, 795).

Even if the Court accepted the defects identified in the Perrelli’s expert affidavit, Perrelli failed to raise a triable issue of fact as to whether the decedent’s fall was proximately caused by those allegedly unsafe conditions. “Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation.” (Hod v. Orchard Fields, LLC, 111 AD3d at 795). Also, the affidavit of the decedent’s friend merely speculates as to the cause of the accident, and therefore does not raise a triable issue of fact. (see Zalot v. Zieba, 81 AD3d 935, 936).

The Second Department correctly reversed the Lower Court’s order that denied defendant’s Summary Judgment motion. This decision is well reasoned because the plaintiff failed to identify the actual or proximate cause of the decedent’s accident without speculation. Hence, defendant’s motion for summary judgment dismissing the complaint based on plaintiff’s failure to sufficiently identify the cause of the accident was properly granted by the Second Department.       

Joseph French, with the assistance of Michelle Yepes, a 3L at St. John’s University School of Law