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Ross and Herman Obtain Summary Judgment Dismissing Trip-and-Fall Claim for Conscious Pain and Suffering, Wrongful Death

April 19, 2021

Mathew Ross (Partner-White Plains, NY) and Elie Herman (Associate-New York, NY) obtained summary judgment in the motion court in a case in which the plaintiff, in her own capacity and as administrator of her husband’s estate, alleged that the decedent tripped and fell while walking on a sidewalk abutting the insured property. The only testimony came from the plaintiff and an individual who assisted the decedent after the accident. Each testified based on what the decedent told them. Mat and Elie moved for summary judgment, arguing that the plaintiff could not demonstrate the cause of the decedent’s fall, as the only available testimony constitutes hearsay not within an exception. The motion court agreed and granted summary judgment dismissing the complaint. On appeal, the plaintiff focused solely on the witness’s testimony, arguing that the decedent’s statements fall within the hearsay exception for excited utterances. Mat and Elie again argued the exception’s inapplicability and that the plaintiff could not identify the cause of the decedent’s fall. The Appellate Division, Second Department, agreed, finding that the plaintiff could not identify the cause of the decedent’s fall.

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