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

Omar EVANS, et al., Plaintiffs–Respondents, v. Arnulfo J. ACOSTA, et al., Defendants–Appellants.


Decided: February 07, 2019

Sweeny, J.P., Tom, Webber, Kahn, Kern, JJ. Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellants. McMahon & McCarthy, Bronx (Matthew J. McMahon of counsel), for respondents.

Plaintiff Omar Evans sustained skull fractures and traumatic brain injury after an accident of which he has no personal recollection.  One eyewitness testified that she saw plaintiff cross the intersection and fall to the ground in a seizure-like episode.  However, another eyewitness testified that he saw plaintiff start to cross the street by walking behind defendants' tractor trailer, as it was going through the intersection, and then fall straight over after being hit in the head by a cherry picker extending from the back corner of the tractor-trailer.  Defendant driver denied having hit anybody, and the police investigation found no signs that defendants' vehicle came into contact with a pedestrian.  The parties also each submitted expert opinions as to whether plaintiff's injuries could have been caused by defendants' tractor trailer, and whether the cherry picker was properly secured.

The conflicting testimony of the two eyewitnesses concerning how plaintiff came to be lying in the intersection with a severe head injury, as well as the conflicting expert opinions, present triable issues of fact and credibility precluding summary judgment (see Rawls v. Simon, 157 A.D.3d 418, 66 N.Y.S.3d 126 [1st Dept. 2018];  Barba v. Stewart, 137 A.D.3d 704, 705, 27 N.Y.S.3d 381 [1st Dept. 2016];  Bradley v. Soundview Healthcenter, 4 A.D.3d 194, 772 N.Y.S.2d 56 [1st Dept. 2004] ).  Based on the evidence that plaintiff suffered amnesia as a result of the accident, the court properly found that plaintiffs' were entitled to application of the Noseworthy doctrine (see e.g. Bah v. Binto, 92 A.D.3d 133, 135, 936 N.Y.S.2d 181 [1st Dept. 2012] ).