New York Office Secures Victory in Trip & Fall Case After Bronx Supreme Court Grants Motion for Reargument

New York, N.Y. (June 25, 2025) - New York Partner Shawn Choudhury achieved a significant victory on behalf of his client, a subcontractor who recently completed sidewalk restoration work for a major utility provider in New York City, in a trip and fall case when a Bronx Supreme Court judge granted his motion for reargument and entered summary judgment for the client.

The claim arose from a trip-and-fall accident in which the plaintiff alleged that she fell due to a raised sidewalk flag installed by our client. From the outset, Mr. Choudhury mounted a strong defense, moving for summary judgment on the grounds that the raised sidewalk did not cause the plaintiff to fall. Crucially, we submitted surveillance video which unequivocally showed that the plaintiff’s foot never made contact with the expansion joint or the alleged raised portion of the sidewalk prior to her fall. The video demonstrated that her right foot was firmly planted on the sidewalk, with clear space between her foot and the expansion joint, conclusively establishing that the identified condition had no role in causing the accident.

In opposition, the plaintiff completely changed her theory of liability, abandoning years of consistent allegations and deposition testimony identifying a raised flag, and instead claiming for the first time that an improper sidewalk slope caused her fall. She submitted a supplemental Bill of Particulars and expert affidavit, none of which had been previously disclosed in any pleadings.

We responded forcefully, arguing that the plaintiff’s new theory was procedurally improper and legally insufficient. It had never been disclosed in any prior Bill of Particulars, and under CPLR § 3043 and applicable case law, such a late-stage shift in theory, unsupported by prior testimony, after the filing of Note of Issue, and clearly crafted in response to the surveillance footage, could not defeat summary judgment. The affidavits were plainly “feigned” and conflicted with the plaintiff’s earlier sworn statements.

Although our initial motion for summary judgment was denied, we pursued a motion for reargument, which is a remedy rarely granted in Bronx Supreme Court, a venue known for being plaintiff-friendly.

Our efforts were successful. The Court granted our motion for reargument, a rare procedural victory, and, upon reconsideration, granted summary judgment in full, dismissing all claims against our client. The Court found that plaintiff improperly raised a new theory of liability for the first time in opposition through an expert report, which should not have been considered. The plaintiff also filed a supplemental Bill of Particulars without leave of court after the note of issue and motion practice had concluded. With the expert report excluded, the only remaining evidence was plaintiff’s affidavit, which the Court deemed insufficient as it contradicted her deposition testimony and was clearly tailored to avoid its impact. As such, the plaintiff failed to raise a triable issue of fact, and the Court agreed with our arguments. The court was finally persuaded that the plaintiff’s original theory was inconsistent with what actually happened and that plaintiff was 100% at fault for her own accident.

Importantly, this result was achieved prior to perfecting the appeal.

For additional information, contact Mr. Choudhury. Visit our General Liability Practice page to learn more about how we can assist in defending high-exposure premises liability or construction-related claims