We are frequently presented with cases in which the sidewalk/street where the plaintiff allegedly fell has been remediated. Nevertheless, plaintiffs serve affidavits from experts who inspect the repaved sidewalk/street and offer some speculative conclusions. This triggers the question of whether defense experts should be retained.
In Amini v. Arena Constr. Co., Inc., the First Department affirmed summary judgment granted to the defendants. The Court specifically found that neither defendant had performed work on the portion of the street where the plaintiff claimed to have fallen. Of interest, the Court also found that the plaintiff’s expert, who inspected the site years after the accident and after the street had been repaved, offered a vague and speculative opinion and did not create an issue of fact.
This decision by the First Department confirms that, under the right circumstances, such expert affidavits have no probative value and will be disregarded by courts.
Special thanks to Georgia Stagias for her contribution.