Virgulak v. Neal, et al., Index No. 22357/2013E (Sup.Ct. Bronx Cty. October 3, 2016)

A Bronx motion court granted summary judgment dismissing claims against drivers of vehicles who were allegedly involved in the plaintiff’s decedent’s motorcycle accident.

Plaintiff’s decedent was operating a motorcycle on the northbound side of the Henry Hudson Parkway in New York City when he was ejected from the motorcycle. He died as a result of injuries from the accident. The defendants operated automobiles that were in front and behind the motorcycle at the time of the accident.

The Court ruled that the rear vehicle defendants established their entitlement to judgment as a matter of law because both the driver and the passenger of that vehicle testified that their vehicle made no contact with Decedent’s motorcycle before they saw it moving out of control, and driver-less, into their center lane of travel. Once they encountered the unmanned motorcycle, the driver swerved to her left and sideswiped a vehicle owned and operated by co-defendants.

Despite this evasive maneuver, the rear vehicle impacted the unmanned motorcycle. However, the driver and passenger also testified without contradiction that their vehicle never came into contact with Decedent himself, who had been thrown from the motorcycle. Testimony established that the driver was confronted with a sudden and unexpected emergency that was not of her own making, and her actions did not contribute to the injuries sustained by the Decedent.

Plaintiff contended that her claims were subject to a lesser degree of proof under the so-called Noseworthy Doctrine, which applies where an action involves amnesia or the death of a plaintiff. Under the Noseworthy Doctrine, a plaintiff “is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence”. See Noseworthy v. City of New York, 298 N. Y. 76 (1948). Applying the doctrine to the evidence in this case, plaintiff contended that there was at least a question of fact whether the rear vehicle defendants contributed to the accident.

The Court rejected this contention. A finding that the rear vehicle defendants contributed to the accident, it held, would be based purely on speculation, guess and surmise, which is not permissible, even where the Noseworthy doctrine applies.

The Court also dismissed claims against the co-defendants from the forward vehicle, on the grounds that their vehicle was struck in the rear by Decedent’s motorcycle and thus Decedent was the sole proximate cause of that collision.

Abrams Gorelick Motor Vehicle Liability team, including Irwin D. Miller, Dennis J. Monaco and Jay S. Gunsher, represented the defendants.