ELMER v. KRATZER

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

Michael J. ELMER, Plaintiff-Respondent, v. Gerald F. KRATZER, Jevic Transportation, Inc., Defendants-Appellants, et al., Defendant.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., HAYES, SCUDDER and BALIO, JJ. Thomas W. Bender, Buffalo, for defendants-appellants. Deborah Gerber Farber, Penfield, for plaintiff-respondent.

Plaintiff commenced this action seeking damages for personal injuries he sustained after his motorcycle collided with a tractor-trailer (see, Elmer v. Kratzer, 249 A.D.2d 899, 672 N.Y.S.2d 584, appeal dismissed 92 N.Y.2d 921, 680 N.Y.S.2d 462, 703 N.E.2d 274).   Supreme Court erred in denying the motion of Gerald F. Kratzer, the driver of the tractor-trailer, and Jevic Transportation, Inc., the owner of the tractor-trailer (defendants), for summary judgment dismissing the complaint against them.

 Defendants met their initial burden by submitting evidence establishing that they were not negligent in any respect.   In opposition to the motion, plaintiff failed to raise a triable issue of fact.   Plaintiff testified at his deposition that he has no memory of the accident, and thus he is not held to as high a degree of proof as a plaintiff who is able to recall details of the accident (see, Schechter v. Klanfer, 28 N.Y.2d 228, 321 N.Y.S.2d 99, 269 N.E.2d 812;  Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744;  Matter of Fasano v. State of New York, 113 A.D.2d 885, 888, 493 N.Y.S.2d 805).   However, “the burden of proof remains on the amnesiac plaintiff * * * to present prima facie evidence of defendant's negligence before the * * * [lesser degree of proof] rule can be applied * * * Unless there is some evidence, even if weak, upon which a jury could find defendant negligent the complaint must be dismissed” (Smith v. Stark, 67 N.Y.2d 693, 695, 499 N.Y.S.2d 922, 490 N.E.2d 841).   Here, plaintiff failed to submit any evidence of negligence on the part of defendants, relying instead on pure conjecture, which alone is insufficient to support a finding of negligence (see, Jarrett v. Madifari, 67 A.D.2d 396, 404, 415 N.Y.S.2d 644).   Moreover, the evidence submitted by the parties establishes that the conduct of plaintiff in attempting to pass the tractor-trailer on the right while it was making a right-hand turn into a driveway was the sole proximate cause of his injuries (see, Smith v. Stark, supra ).

Order unanimously reversed on the law without costs, motion granted and amended complaint against defendants Gerald F. Kratzer and Jevic Transportation, Inc. dismissed.

MEMORANDUM: