Case Results
Gordon & Silber Obtains Summary Judgment in a Recreational Tort Case – August 2009.
Type of Case: Automobile.
Venue: Supreme Kings.
Background Facts: The 63-year old plaintiff alleged that, while a guest of her niece at our insured’s premises in September 2007, she fell off an exercise bicycle she had mounted for the purposes of exercise. The bicycle was one of two identical models situated next to one another that were not affixed to the ground. Plaintiff claimed that her fall resulted from the bicycle not being affixed to the ground and the bicycles being placed “too close to one another.” Plaintiff claimed a left rotator cuff injury requiring surgery.
Our Strategy: We secured a copy of the safety manual for the exercise bicycle in question and annexed it to our summary judgment motion, showing: (1) that the manufacturer did not recommend that the bicycle be secured to the floor, and (2) recommending that the bicycles be placed eight to 12 inches apart from one another. We pointed out that nowhere did the plaintiff or her niece offer any exact measurement of how far apart the adjoining bicycles were or in fact, how the distance of the bicycles caused the accident. We also argued that the niece’s affidavit should be disregarded on the grounds she refused to appear for a deposition despite being subpoenaed.
Special Problems: No one from the insured staff offered plaintiff any instructions prior to her mounting the bicycle. Plaintiff’s niece offered an affidavit in opposition to the motion claiming that she witnessed the accident and that the bicycles "looked like they were touching."
Result: Supreme Court, Kings County granted our motion for summary judgment.
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