Practice point: Defendant failed to make a prima facie showing that plaintiff's injuries were not caused or exacerbated by the alleged breach of defendants duty of care, and, thus, the burden never shifted to plaintiff on this issue.
On the motion, defendant improperly attempted to shift the initial burden to plaintiff, by challenging the existence of evidence as to causation, rather than affirmatively establishing a lack of causation, such as via an expert affidavit. Defendant argued that "[p]laintiff has failed to produce any evidence . . . suggesting that [defendant's] conduct caused her injury to worsen," and proceeded to try to poke holes in plaintiff's theory of causation. While plaintiff's ability to establish a causal connection may be difficult, that does not establish the absence of a causal connection.
Student note: A defendant cannot meet its burden merely by pointing out gaps in plaintiff's case.
Case: Katz v. United Synagogue of Conservative Judaism, NY Slip Op 00094 (1st Dept. 2016)
Here is the decision.
Tomorrow's issue: Bus stops.
