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Quiz of the Month

By ALM Staff | Law Journal Newsletters |
October 22, 2003

Q: The witness does not recall a particular material fact. Is that sufficient to create an issue of material fact? Can the witness's failure to recollect be cited as proof that the matter at issue did not occur?

No on both counts. A failure to recollect cannot be used to create a material issue of fact. Costello v. St. Francis Hospital, 258 F.Supp.2d 144 (E.D.N.Y. 4/16/03) (Hurley, D.J.) ('Such responses, of course, are not sufficient to counter [a party's] showing that it is entitled to judgment as a matter of law.') Further, a witness's failure to recollect a specific event 'is not affirmative proof that the events did not occur, particularly where the witness testified to her general recollection that [the defendant] complied with the agreement.' Vazquez v. Salomon Smith Barney, 2003 WL 21242902 (S.D.N.Y. 5/29/03) (Martin, D.J.).

Q: The witness does not recall a particular material fact. Is that sufficient to create an issue of material fact? Can the witness's failure to recollect be cited as proof that the matter at issue did not occur?

No on both counts. A failure to recollect cannot be used to create a material issue of fact. Costello v. St. Francis Hospital, 258 F.Supp.2d 144 (E.D.N.Y. 4/16/03) (Hurley, D.J.) ('Such responses, of course, are not sufficient to counter [a party's] showing that it is entitled to judgment as a matter of law.') Further, a witness's failure to recollect a specific event 'is not affirmative proof that the events did not occur, particularly where the witness testified to her general recollection that [the defendant] complied with the agreement.' Vazquez v. Salomon Smith Barney, 2003 WL 21242902 (S.D.N.Y. 5/29/03) (Martin, D.J.).

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