Jose v. Richards

In an action to recover damages

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 , 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]; Zuckerman v City of New York, 49 NY2d 557 , 562 [1980]). In opposition, the plaintiff failed to produce proof establishing the existence of a triable issue of fact (see Zuckerman v City of New York, supra). While a plaintiff who suffers from amnesia as the result of the defendant’s conduct is not held to as high a degree of proof in establishing his or her right to recover for his or her injuries as a plaintiff who can describe the events in question (see Noseworthy v City of New York, 298 NY 76 [1948]; Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328 , 333 [1986]; Menekou v Crean, 222 AD2d 418 , 419 [1995]), such a plaintiff is not relieved of the obligation to provide some proof from which negligence can reasonably be inferred (see Smith v Stark, 67 NY2d 693 , 695 [1986]; Coughlin v Bartnick, 293 AD2d 509 , 510 [2002]; Byrd v New York City Tr. Auth., 228 AD2d 537 [1996]). In this case, the affidavit of the plaintiffs accident reconstruction expert was insufficient to defeat the defendant’s motion for summary judgment (see Bavaro v Martel, 197 AD2d 813 , 814 [1993]). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Santucci, J.P., Schmidt, Cozier and Rivera, JJ., concur.