Black v. Loomis

• Decision Date: 27 February 1997
• Citation: 654 N.Y.S.2d 19,236 A.D.2d 338
• Parties: Robert S. BLACK, Bronx Public Administrator, as Administrator of the Estate of Fernando Zambrana, Deceased, Plaintiff-Appellant, v. Rebecca LOOMIS, Defendant, and Kramer Pharmacy, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 19

654 N.Y.S.2d 19

236 A.D.2d 338

Robert S. BLACK, Bronx Public Administrator, as Administrator of the Estate of Fernando Zambrana, Deceased, Plaintiff-Appellant, v. Rebecca LOOMIS, Defendant, and Kramer Pharmacy, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Feb. 27, 1997.

Alexander J. Wulwick, for Plaintiff-Appellant.

Deborah F. Peters, for Defendant-Respondent.

Before MILONAS, J.P., and ELLERIN, TOM and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 28, 1995, which granted defendant-respondent's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

While plaintiff is correct in noting that the plaintiff in a wrongful death action is not held to as high a degree of proof as the plaintiff in a personal injury action (Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744), plaintiff is still obliged to provide some proof from which negligence could reasonably be inferred (see, Wright v. New York City Housing Authority, 208 A.D.2d 327, 624 N.Y.S.2d 144). Here, plaintiff's opposition consists mainly of a repetition of the allegations contained in the complaint--namely that the decedent had fallen down a set of stairs in a building owned and operated by defendant Kramer, and that this fall was caused by defendant's negligence. Such is not sufficient opposition to defendant's motion for summary judgment (see, Abish v. Cetta, 155 A.D.2d 495, 547 N.Y.S.2d 358), for only the existence of a bona fide issue raised by evidentiary facts "and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment" (Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068).