Plaintiff Cannot Use An Expert To Circumvent Her Deposition Testimony

In Roimesher v. Colgate Scaffolding & Equip. Corp., the plaintiff tripped and fell on an uneven sidewalk. The defendant had erected a sidewalk bridge in front of a commercial building adjacent to where the plaintiff fell. Neither plaintiff’s verified complaint nor her bill of particulars alleged that the sidewalk bridge narrowed her pathway, thereby directing her towards a defective area of the sidewalk. During her deposition, the plaintiff testified that nothing blocked the sidewalk at the time of the accident. Nonetheless, she submitted an expert’s affidavit to establish a prima facie case against the defendant. The court granted the defendant’s motion to dismiss because the pleadings and discovery were bereft of any allegation that the sidewalk bridge directed plaintiff to the hazardous area. The court disregarded the expert affidavit because it contradicted the plaintiff’s sworn testimony and consisted of conjecture and speculation.

Thanks to Bill Kirrane for his contribution to this post.