CURRAN v. Smarte Carte, Inc., appellant. (1999)

In an action to recover damages for personal injuries, etc., the defendant Smarte Carte, Inc., appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated May 11, 1998, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

Contrary to the plaintiffs' contention, the memorandum prepared by the plaintiff Cornelius Curran which stated that his wife, the injured plaintiff Una Curran, tripped over a steel bolt, does not constitute a past recollection recorded.   Cornelius Curran did not witness the accident, could not remember if his wife told him that she tripped over the steel bolt, and did not notice the steel bolt until he revisited the scene of the accident (see, White Plains Towing Corp. v. State of N.Y., 187 A.D.2d 503, 589 N.Y.S.2d 908).  Moreover, Una Curran testified at an examination before trial that she does not know what caused her to fall.

In light of the foregoing, after the appellant made out a prima facie case for summary judgment, the plaintiffs failed to raise a triable issue as to whether the steel bolt was the cause of Una Curran's fall.   Accordingly, the motion for summary judgment dismissing the complaint insofar as asserted against the appellant must be granted.

MEMORANDUM BY THE COURT.