BM&S Secures Dismissal on Behalf of Small Business Owner

In Kassim v. Dimino, plaintiff claimed severe personal injuries resulting from a fall on an alleged icy and/or defective sidewalk abutting the property of our client, a small business owner. During discovery, plaintiff failed to appear for his deposition, with his counsel citing a traumatic brain injury causing memory deficits. Despite our requests to have plaintiff submit to a competency evaluation, counsel decided to prosecute the negligence claims based upon non-party testimony and medical records with statements by the Plaintiff relating to the cause of his fall.

At the completion of discovery, and after securing a Court order precluding plaintiff from testifying at trial, BM&S attorneys moved for summary judgment arguing that plaintiff’s negligence claims should be dismissed because he could not establish by any admissible evidence the cause of his fall, there being no evidentiary link between the fall and any negligence of the property owner. Plaintiff opposed the motion arguing that there was a triable issue of fact articulated in an unsubstantiated ambulance call report, hearsay statements contained in his emergency room medical records and corroborating non-party testimony to prove that he fell on ice on the sidewalk. In reply, BM&S attorneys successfully argued that the statements contained in the medical records and ambulance report relating to the cause of plaintiff’s fall constituted inadmissible hearsay, and could not be relied upon to defeat the motion. The Court agreed, and dismissed all claims against the property owner.

Crucial to this win was BM&S being persistent in securing preclusion of plaintiff’s deposition testimony and blocking the inadmissible hearsay from evidence in opposition to the summary judgment motion. Our client, a small business owner, was ecstatic to have the cloud of a baseless claim lifted.