Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

Present:                  HONORABLE       ARTHUR W. LONSCHEIN    IA Part 9  
                                                                             Justice

___________________  x                     Index
TERESA RUSSO,                                : Number 21407 1991
                                                            :
                                                            : Motion
               - against -                               : Date June 15, 1999
                                                            :
                                                            :   Motion
CITY OF NEW YORK, et al.              : Cal. Number 19
                                          x                 :  

The following papers numbered 1 to 21 read on this motion by defendant City of New York for dismissal of the complaint pursuant to CPLR 3211(a)(7) or for summary judgment in its favor.

                                            Papers
                                            Numbered

Notice of Motion - Affidavits - Exhibits .... 1 - 4
Affirmation in Support - Exhibits ........... 5 - 7
Affirmation in Opposition - Exhibits ........ 8 - 13
Reply Affidavits - Exhibits.................. 14 - 19
Sur-Reply Affirmation - Exhibits ............. 20 - 21

Upon the foregoing papers it is ordered that the motion is granted.

Plaintiff Teresa Russo suffered serious injuries when her car collided with a chain link fence and then a tree on Forest Parkway in Queens. It was a single car accident with no witnesses. The vehicle was driven by Ms. Russo, with no passengers, and was owned by her mother, third-party defendant Anna Marie Petillo. It is undisputed that plaintiff has no memory of the accident. In his deposition testimony, the officer at the scene, Robert D'Alessandro, states that he concluded the cause of the accident to be a combination of wet roadways and the speed of plaintiff's vehicle. In her notice of claim, plaintiff alleged the cause to be the existence of construction and resultant debris in the vicinity of the accident, as well as claiming negligence in defendant's maintenance of the roadways. Over the long history of this litigation, all claims against the defendants associated with the construction project have been dismissed. In opposition to the present motion, plaintiff raises for the first time a theory that dirt on the roadway was the cause of the accident. Aside from relying on portions of the police officers's testimony, plaintiff provides no expert affidavit or other evidence to support this theory. Defendant City of New York counters that even if this theory were plausible, plaintiff has failed to meet the prior written notice requirement necessary for claims against the City. Defendant also produces affidavits from the Prior Notification Unit and the Office of the Queens Borough Engineer to show that there are no records of any prior claims with regard to this roadway.

Where a party has come forward with sufficient evidence to warrant a court's grant of judgment as a matter of law, the burden shifts to plaintiff to lay bare its proof and submit evidentiary facts sufficient to raise a triable issue of fact. (Zuckerman v City of New York, 49 NY2d 557.) It is axiomatic that the assertions and allegations of plaintiff's counsel alone cannot suffice to meet this burden. (Zuckerman v City of New York, supra.) It is also well established that on a summary judgment motion, the court cannot consider new facts and arguments making their first appearance in reply papers. (Lumbermens Mut. Cas. Ins. Co. v Fayva Shoe Stores, 218 AD2d 624; Azzopardi v American Blower Corp., 192 AD2d 453.) Plaintiff relies on portions of officer D'Alessandro's testimony to support the present theory of liability, while disregarding those portions that contradict it. While this court will not pass on the credibility of this testimony, it is clear that the testimony does not support plaintiff's claims. Nor does plaintiff provide an expert affidavit to support her theory that the dirt on the roadway was the cause of the accident. Finally, plaintiff fails to contradict the City's assertion that the required notice provisions have not been met. (Almodovar v City of New York, 240 AD2d 523.)

While indeed, in cases of this nature, plaintiff need not exclude every other possible cause of an accident, plaintiff must present a theory of causation supported by some logical inference. (Gayle v City of New York, 92 NY2d 935.) Aside from the unsupported theory pertaining to dirt on the roadway, there is no evidence submitted in the nine-year history of this litigation to support any theory of liability against the City. (Ether v State of New York, 235 AD2d 685.) In light of the foregoing, plaintiff, despite her loss of memory of the accident, cannot rely upon the reduced standard of proof of the Noseworthy Doctrine, as the burden still remains upon the amnesiac plaintiff to first present prima facie evidence of defendant's negligence. (Smith v Stark, 67 NY2d 693.) Plaintiff has made no such showing.

Accordingly, as plaintiff cannot establish the existence of an issue of fact sufficient to defeat defendant's motion, defendant City of New York may enter judgment dismissing the claims against it.

Dated: October 21, 1999 ______________________________

J.S.C.