BULMAN v. ENTERPRISE

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Supreme Court, Appellate Division, Fourth Department, New York.

Patricia M. BULMAN, as Administrator of the Estate of Jeffrey D. Bulman, Deceased, Plaintiff-Appellant, v. P & R ENTERPRISE and Paul J. Wagner, Defendants-Respondents.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND HAYES, JJ. Trevett, Lenweaver & Salzer, P.C., Rochester (Peter A. Jacobson of Counsel), for Plaintiff-Appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Matthew H. Woodard of Counsel), for Defendants-Respondents.

Plaintiff commenced this action to recover damages for the wrongful death and conscious pain and suffering of decedent resulting from a collision between decedent's snowmobile and a vehicle owned and operated by Paul J. Wagner (defendant).   Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint.   Although defendants met their initial burden on the motion, the affidavit of plaintiff's accident reconstruction expert raises triable issues of fact whether the accident occurred in the manner described by defendant (see Sitaras v. James Ricciardi & Sons, 154 A.D.2d 451, 452, 545 N.Y.S.2d 937, lv. denied 75 N.Y.2d 708, 554 N.Y.S.2d 833, 553 N.E.2d 1343;  Soulier v. Hughes, 119 A.D.2d 951, 953, 501 N.Y.S.2d 480).   Contrary to the contention of defendants and the conclusion of the court, the opinions of plaintiff's expert are neither speculative nor conclusory (see Sitaras, 154 A.D.2d at 453, 545 N.Y.S.2d 937;  cf. Rachlin v. Volvo Cars of N. Am., 289 A.D.2d 981, 982, 734 N.Y.S.2d 798;  Terwilliger v. Dawes, 204 A.D.2d 433, 434, 611 N.Y.S.2d 646).   Further, we are reluctant to uphold an award of “summary judgment against a plaintiff in a wrongful death action since the plaintiff is not held to as high a degree of proof as where an injured plaintiff can himself describe the occurrence” (Zibbon v. Town of Cheektowaga, 51 A.D.2d 448, 450, 382 N.Y.S.2d 152, appeal dismissed 39 N.Y.2d 1056, 387 N.Y.S.2d 428, 355 N.E.2d 388;  see Walsh v. Town of Cheektowaga, 237 A.D.2d 947, 948, 654 N.Y.S.2d 912, lv. dismissed 90 N.Y.2d 889, 661 N.Y.S.2d 833, 684 N.E.2d 283).   Viewing the evidence in the light most favorable to plaintiff (see Renda v. Frazer, 75 A.D.2d 490, 495-496, 429 N.Y.S.2d 944) and allowing for the fact that decedent cannot testify (see Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744), we conclude that, through the affidavit of her expert, “plaintiff has shown ‘facts and conditions from which the negligence of [defendants] and the causation of the accident by that negligence may be reasonably inferred’ ” (Salles v. Manhattan & Bronx Surface Tr. Operating Auth., 250 A.D.2d 548, 548, 674 N.Y.S.2d 8, lv. denied 92 N.Y.2d 817, 684 N.Y.S.2d 488, 707 N.E.2d 443, quoting Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7, 14 N.E.2d 828).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the motion is denied and the complaint is reinstated.

MEMORANDUM: