Plaintiff, It’s Important To Know Where You Fell

Often times, plaintiffs will provide vague, non-specific and/or inaccurate descriptions of where the alleged accident occurred.  Such descriptions can provide a basis for dismissal of their case.

Guillermo Robles claimed that he tripped and fell because of a dangerous condition in the courtyard of a Housing Authority complex where he lived.  In his notice of claim Robles alleged that he tripped on a raised concrete perimeter while walking through the courtyard and during his § 50-h hearing, he identified a specific tree well as being the location of his accident.  However, after commencing suit, Robles served a bill of particulars in which he identified a different tree well in a different area of the courtyard as the accident location.  Once deposed, he reverted back to the original tree well as the site of his accident.

In its summary judgment motion, the Housing Authority argued that it had been prejudiced by the ever changing accident location and that Robles was improperly attempting to feign an issue of fact by altering his testimony.  Despite these discrepancies, the lower court denied the motion.  In reversing the decision on appeal, a divided First Department noted that Robles provided a vague description of the accident location in his notice of claim and failed to describe the location with sufficient particularity.  The court further emphasized that Robles’ contradictory accounts of where the accident occurred obscured the correct location of the accident, further rendering the notice of claim defective, thereby prejudicing the Housing Authority.

Special thanks to Alicia Sklan for her contributions to this post.  For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com.