Acevedo v. Hog Wing Lau — 88 A.D.3d 751

Majority

p. 751

(October 11, 2011)

Mary E. Acevedo, as Guardian of the Person and Property of Billy J. Alvarado, an Incapacitated Person, Appellant, v Hog Wing Lau et al., Respondents.

[930 NYS2d 915]

In support of their motion for summary judgment dismissing the complaint, the defendants made a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any triable 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 raise a triable issue of fact.

We note that while the person on whose behalf the plaintiff commenced this action suffers from, among other things, signif

p. 752

icant cognitive impairments as a result of the subject accident and, thus, is not held to as high a degree of proof (see Noseworthy v City of New York, 298 NY 76 [1948]), the plaintiff is not relieved of the obligation to provide some proof from which negligence can reasonably be inferred, which she failed to do (see DeLuca v Cerda, 60 AD3d 721 , 722 [2009]; see also Melendez v Parkchester Med. Servs., P.C., 76 AD3d 927 , 928 [2010]).

Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. Skelos, J.E, Balkin, Leventhal and Hall, JJ., concur.

Cases cited

Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 at 324 p. 751
Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 at 853 p. 751
Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 at 562 p. 751
Noseworthy v. City of New York 298 NY 76 N.Y. 1948-07-16 p. 752
DeLuca v. Cerda 60 AD3d 721 N.Y. App. Div. 2009-03-10 at 722 p. 752