Plaintiff Slip and Fall Case Dismissed for Testifying She Fell at Wrong Location

The New York Supreme Court, Appellate Division, Second Department dismissed a personal injury case against a building owner and Chinese restaurant when the plaintiff mistakenly sued the wrong entity.

While walking down the sidewalk on Fifth Avenue in Brooklyn, the plaintiff tripped over a cellar door and fell, sustaining injuries. She brought a personal injury suit against 197 Fifth Avenue, the building owner, and Sun Luck Restaurant, a Chinese restaurant that used a cellar at the building.

A civil case, including a slip and fall lawsuit, begins when the plaintiff files a complaint. The complaint must contain the plaintiff’s specific claims, as well as some facts to support those claims. The defendant’s answer contains counterclaims or defenses, as well as facts to support the counterclaims and defenses.

The parties then conduct discovery. During discovery, the parties conduct investigations, depositions of witnesses such as the plaintiff or expert witnesses, consult with witnesses and have the witnesses draft affidavits, comb through relevant documents, and draft and file any relevant motions.

One such motion is the motion for summary judgment. This motion can incorporate all of the information gathered during the discovery phase that is deemed admissible evidence. Though it can be made early on in the process, the moving party generally waits until gathering a substantial amount of discovery. This is because it is the burden of the moving party to proffer enough evidence in its motion to show that it is entitled to judgment as a matter of law.

If the defendant files the motion, the defendant is arguing a claim or the entire complaint must be dismissed because the defendant has proven that it is entitled to this outcome as a matter of law.

One such way the defendant may argue that it is entitled to judgment as a matter of law is by showing that the wrong defendant is being sued. Here, the two defendants made this exact argument.

During her deposition, the plaintiff testified that she tripped and fell at 140 Fifth Avenue, not 197 Fifth Avenue. Not only is this property not affiliated with either defendant in any way, but it is three blocks away and across the street. Throughout her deposition, she repeatedly stated 140 Fifth Avenue and even described the exact route, distance, and direction she walked in order to reach 140 Fifth Avenue. The plaintiff also recounted the name of the business at 140 Fifth Avenue, which was not Sun Luck Restaurant. Further, in her deposition, the plaintiff stated she was positive it was 140 Fifth Avenue because she retraced her walking route a few days later to confirm the address. When she was handing a photo of 140 Fifth Avenue, she confirmed this was the location and circled the cellar door for that property.

Despite her repeated and emphatic testimony, the plaintiff later filed an errata sheet. An errata sheet is a list of corrections a witness wishes to make to clarify or revise testimony given during a deposition. New York requires that in order for an errata sheet to be accepted by the court, the moving party must provide an adequate reason for any critical changes or corrections that would materially alter the testimony. This is because the court does not want to encourage parties to constantly revise any unfavorable testimony to support their claims.

In her errata sheet, the plaintiff corrected the address of her fall to 197 Fifth Avenue. She said that the reason for her correction was that an investigator for her lawyer had mistakenly gone to 140 Fifth Avenue and taken photographs, which caused her to believe the accident had occurred at that address when it really happened at 197 Fifth Avenue.

The trial court accepted this argument and refused to strike the errata sheet as requested by the parties. In addition, the trial court refused to grant the defendants’ motions for summary judgment. The Second Department reversed and dismissed the case, holding that the plaintiff failed to proffer an adequate reason for her very serious testimony changes. Without those changes, the evidence showed the accident occurred at a different address.

If you or a loved one has been injured in a slip-and-fall accident, you need a skilled and experienced lawyer to advocate for your rights. Contact the accomplished New York personal injury lawyers at Gallivan & Gallivan today.

Horn v. 197 5th Ave. Corp., 123 AD3d 768 (2nd Dept. 2014).

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