Plaintiffs, Charles Sotamba, individually, as Administrator of the estate of his deceased wife, Fanisha Sotamba and as guardian of Charlise Sotamba bring this negligence and wrongful death action seeking damages for the injuries and death suffered by Fanisha Sotamba on December 12, 2005, at the intersection of Broadway and Myrtle Avenue in Brooklyn, New York. Charles and his infant child Charlise have also brought causes of action for loss of consortium and injuries suffered on account of their being within the zone of danger at the time of Fanisha Sotamba's death.

The undisputed facts are that shortly before the accident which took Ms. Sotamba's life, she and her husband Charles were walking on the sidewalk abutting Broadway towards its intersection with Myrtle Avenue. Mr. Sotamba was walking behind Ms. Sotamba when Mr. Sotamba stopped to secure the couple's then three and one-half year old child Charlise in a stroller. When Mr. Sotamba last saw his wife, she had stopped at or near the intersection and turned to look back at Mr. Sotamba. When Mr. Sotamba next looked in his wife's direction, she was nowhere to be seen. Mr. Sotamba testified that he assumed she had crossed the street. Ms. Sotamba had in fact been fatally struck by defendant C. Francis Construction Corp.'s ("Francis Corp.") dump truck as it made a right turn from Myrtle Avenue eastbound onto Broadway southeast bound. Plaintiffs have sued Francis Corp and the City of New York (City) for negligence and wrongful death. The basis of the claim against the City is that Ms. Sotamba tripped and fell because of a defective sewer grating in the crosswalk

The City now moves pursuant to CPLR §3212 for summary judgment on the grounds that 1) there is no evidence of any defect in the crosswalk where the accident occurred, 2) there is no [*2]written notice of any defect in the crosswalk where the accident occurred and 3) there is no competent evidence of how the accident occurred sufficient to causally relate any purported defect to the accident which resulted in Ms. Sotamba's death. The City also moves to dismiss plaintiffs' zone of danger claim on the grounds that Mr. Sotamba and his infant child were not within the zone of danger.

Plaintiffs' version of the facts claims that Ms. Sotamba tripped on a defect near a sewer grating owned and maintained by the City causing the upper portion of her body to come into the path of the rear wheels of defendant Francis Corp's dump truck. In support of their position, plaintiffs have offered the affidavit of Nicholas Belizzi, P.E., a civil engineer who has also identified himself as an "accident reconstructionist". Plaintiffs are constrained to rely upon an engineer because there is no witness to Ms. Sotamba's death.

A party may request that inferences be drawn where there is sufficient evidentiary support to avoid sheer speculation. For instance, despite the absence of an affidavit of a witness with first-hand knowledge who observed Ms. Sotamba being struck by the dump truck, the Court, if the facts do not arise as speculation, may infer that Ms. Sotamba was struck based upon the circumstantial evidence of the accident. In Flores v. City of New York , 29 AD3d 356, 358, [ 1st Dept.,2006] the court stated:

"Plaintiff had to establish the existence of "facts

and conditions from which the negligence of the

defendant and the causation of the accident by that

negligence may be reasonably inferred". However,

such proof must permit a finding of proximate cause

"based not upon speculation, but upon the logical

inferences to be drawn from the evidence""

(Citations omitted)

Additionally, a party may establish negligence and causation based on circumstantial evidence where the plaintiff proves facts and conditions from which negligence and causation may be reasonably inferred. (Ingersoll v Liberty Bank, 271 NY 1 [ 1938 ]) . In such cases, the plaintiff is not required to exclude every other possible cause of the accident. ( Ingersoll v Liberty Bank, 271 NY 1 [1938 ], Rosenberg v Schwartz 260 NY 162 [1932]). The proof must render competing causes of the accident sufficiently remote as to enable the fact finder to base its determination on logical inferences rather that sheer speculation . (Spett v President Monroe Building and Mfg. Corp. 19 NY2d 203 [1967], Marhel v Spencer, 5 NY2d 958 [1959]. ) An inference in such cases is appropriate because there is no competing version of occurrences which renders the inference speculative.

The question of how Ms. Sotamba came to be struck by the Francis Corp truck does not lend itself to the same analysis. While Ms. Sotamba may have tripped into the rear wheels of the turning truck as the plaintiffs contends, she might also have been standing in place when she was struck or she might have unwittingly walked into the path of the rear wheels of the turning truck, or she might have mis-stepped or simply lost her balance. All of these scenarios lend themselves to speculation by the Court. Each of the competing versions commands a distinct analysis and a different result as to what caused this tragic accident. [*3]

Plaintiffs submit the engineer's report of Mr. Bellizzi which does not include any details of how he used the documents or records that he states he relies on. For example, he does not discuss with any degree of specificity the Autopsy Report finding regarding the decedent's injuries to the head and to the torso and how he might have reached his opinion that the accident was caused by the decedent's tripping. He opines that had Fanisha Sotamba not tripped but had been standing upright the rear wheel would have struck her hip, "NOT HEAD!!"' Yet, he does not comment on the extensive injuries to Ms. Sotamba's torso outlined in the autopsy report and the impact these documented injuries have on his opinion as to how the accident occurred. Mr. Bellizzi further states that he uses witness statements, however, there are no witnesses or witness statements that describe the actual accident. An expert affidavit which offers conclusory opinions without any factual support and without reliance on any facts or data has no probative value for summary judgement. ( Maldonado v Lee, 278 AD2d 206 [ 2d Dept 2001]). Additionally, Mr. Bellizzi does not provide conclusions based on any measurements of industry standards for accident reconstruction. Where an expert affidavit does not sufficiently identify industry standards upon which the expert relies, it is not to be properly considered. (Jones v City of New York, 32 AD3d 706 [1st Dept 2006]). Finally Mr. Bellizzi's affidavit does not lead the Court to conclude that his affidavit demonstrates "a degree of confidence in his conclusions sufficient to satisfy acceptable standards of reliability". ( Matott v Ward, 48 NY2d 455 [1979]).Mr. Bellizzi expert engages in impermissible inferences. "Although proximate cause can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury" (Oettinger v. Amerada Hess Corp. 15 AD3d 638, 639, [2d Dept., 2005], citing Hartman v. Mountain Val. Brew Pub, 301 AD2d 570, [2d Dept., 2003]), "[m]ere speculation as to the cause of a fall, where there can be many causes, is fatal to a cause of action" (Garvin v. Rosenberg, 204 AD2d 388, [2d Dept., 1994].) As is the case here, the Oettinger court went on to hold that "[s]ince 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" .

Mr. Bellizzi's affidavit is even more speculative as it assumes not only the cause of Ms. Sotamba's trip, but that Ms. Sotamba tripped in the first instance. There is no competent evidence in this case establishing even that Ms. Sotamba tripped much less the cause of her tripping.

Plaintiffs assert it is "undisputed that the accident occurred as Fanisha stepped off the curb in the crosswalk" and they base that contention on the Police Department records, the testimony of Officer Melillo and the testimony of Mr. Sotamba. A review of the documents and the deposition testimony does not support this contention.

The Highway District Accident Investigation Computation Sheet for which Officer Melillo was the accident investigation technician, in its only description of the accident states that "the pedestrian, while attempting to walk across Broadway from the southeast corner of the intersection, became caught up in the right rear wheels of vehicle No.1". The Accident Investigation Squad Preliminary Report uses the identical language.

One of the 911 callers, Damaris Soto, was contacted during the police investigation. No statement, sworn or otherwise is provided, but her account of the accident is described in summary form in the accident investigation report as follows: "was crossing street, saw truck [*4]passing by. The woman fell in front of her, but she did not see the woman get struck." Plaintiffs have not offered competent proof in admissible form of Ms. Soto's account of this accident (Murray v Donland, 77 AD2d 337[2d Dept 1980]). However, even if the language attributable to Ms. Soto in the New York Police Department (NYPD) records was admissible, it is, at best, ambiguous. It is unclear how Ms. Soto could have observed Ms. Sotamba fall without observing her come into contact with the truck unless the fall referred to came after contact with the truck.That possibility is consistent with the witness account of Romauldo Vasquez who stated he did not observe the impact, but while waiting for the bus saw what "looked liked someone threw [sic] a dummy or something. But then [he] saw it was a woman, she flew up in the back of the truck."

The NYPD Accident Investigation Squad case disposition summary dated February 28, 2006 states:

On this date, the investigation of this accident has been completed.

**********

All cooperative 911 callers have been contacted, none of which witnessed the accident.

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Due to the fact that there are no known actual witnesses to this accident, it cannot be positively determined whether operator #1 or the pedestrian were at fault. Although the pedestrian was crossing within the crosswalk, there are no witnesses to confirm if she attempted to cross after vehicle #1 was in the process of making the right turn. The on scene investigation revealed that the pedestrian apparently walked into the right side of vehicle #1 when she was struck by the right rear wheels. This case has been reviewed by the Accident Investigation Squad Supervisor who concurs with these findings.

Finally, neither Officer Melillo's pretrial testimony, nor Mr. Sotamba's testimony establishes that Ms. Sotamba's accident occurred as she stepped off the curb as argued by plaintiffs.

Based on the absence of any testimony implicating the City in the cause of this accident, the defendant City has met its burden on summary judgment and established the absence of any question of fact. (Zuckerman v City of New York, 49 NY2nd 557 [1980], Winegrad v New York University Medical Center, 64 NY 2nd 851 [1985].) The burden now shifts to plaintiffs to raise triable issues of fact (Alverez v. Prospect Hospital, 68 NY2d 320 [1986]).

As discussed previously, to meet its burden, plaintiffs have offered the affidavit of Nicholas Belizzi, P.E., as the sole evidence of plaintiffs' theory implicating the City. Admissibility of the expert's affidavit aside, none of the evidence submitted on this motion creates an issue of fact concerning whether Ms. Sotamba fell into the path of the truck as Mr. Belizzi opined as a result of a defect in the crosswalk. Mr. Belizzi's opinion is not based on competent evidence but is grounded on speculation and therefore does not raise triable issues of fact. The question of the existence or necessity of notice of the defect that purportedly caused Ms. Sotamba's fall cannot be reached by this Court in the absence of any competent proof of the cause of Ms Sotamba's purported fall. [*5]Neither Plaintiffs' counsel, nor plaintiff's expert nor any witness has firsthand knowledge of either whether Ms Sotamba. fell and if so, the cause of her fall. Accordingly, there is no means of identifying any defect concerning which the question of prior notice can be analyzed.

Finally, the zone of danger rule allows for a person who himself is threatened with bodily harm as a result of a defendant's negligence to recover for emotional injury by virtue of observing the injury or death of a member of such person's immediate family. ( Bovsun v. Sanperi 61 NY2d 219 [1984].) On the instant facts, the plaintiffs do not contend that either Mr. Sotamba or his child were ever threatened with harm or that either observed Ms. Sotamba being struck. In addition, as discussed above, on the instant facts, it cannot be said that the City of New York bears any liability for Ms. Sotamba's accident. Accordingly, plaintiff's claim for negligent infliction of emotional distress must also fail.

Accordingly, the motion of the City for summary judgment dismissing the complaint is granted. The Clerk of the Court is directed to dismiss the complaint as against the City of New York with prejudice. The case is transferred to a Non-City part for trial.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.