| Smart v Zambito |
| 2011 NY Slip Op 05339 [85 AD3d 1721] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| Patricia Smart, as Administratrix of the Estate of Marilyn LouiseCuyler, Deceased, Respondent, v Richard Zambito, Appellant. |
—[*1] Stanley Law Offices, LLP, Syracuse (Keith R. Young of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.),entered March 30, 2010 in a personal injury action. The order denied defendant's motion forsummary judgment dismissing plaintiff's complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, defendant's motion is granted and the complaint is dismissed.
Memorandum: Plaintiff, as administratrix of the estate of Marilyn Louise Cuyler (decedent),seeks to recover damages in this action for injuries allegedly sustained by decedent when she fellon a set of exterior stairs at defendant's residence. We agree with defendant that Supreme Courterred in denying his motion for summary judgment dismissing the complaint. Defendant met hisinitial burden on the motion by establishing as a matter of law that decedent was unable tospecify what caused her to fall "without engaging in speculation," and plaintiff failed to raise atriable issue of fact (Bolde v BorgataHotel Casino & Spa, 70 AD3d 617, 618 [2010]). Indeed, at her deposition decedent didnot testify consistently concerning the cause of her fall, and there were no eyewitnesses.Although in this circumstantial evidence negligence case plaintiff is not required to " 'excludeevery other possible cause' of the accident but defendant's negligence . . . ,[plaintiff's] proof must render those other causes sufficiently 'remote' or 'technical' to enable thejury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawnfrom the evidence" (Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743, 744 [1986];see generally Rosenberg v Schwartz, 260 NY 162, 166 [1932]). Here, summary judgmentin defendant's favor is appropriate because " 'it is just as likely that the accident could have beencaused by some other factor [unrelated to any alleged negligence on defendant's part], such as amisstep or loss of balance[, and thus] any determination by the trier of fact as to the cause of theaccident would be based upon sheer speculation' " (McGill v United Parcel Serv., Inc., 53 AD3d 1077, 1077 [2008];see Bolde, 70 AD3d at 618; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434 [2006]).Decedent's deposition testimony establishes that " 'it is just as likely' " that she fell due todizziness or loss of balance or by some other nonnegligent factor (McGill, 53 AD3d at1077). "Negligence [by the defendant] cannot be presumed from the mere happening of anaccident . . . [*2]Negligence must be proven"(Mochen v State of New York, 57 AD2d 719, 720 [1977]).
Finally, we reject plaintiff's contention that the alleged violations of the building code requiredenial of defendant's motion inasmuch as plaintiff failed to establish that the building code reliedupon by her expert applied to the subject stairway. Specifically, plaintiff's expert relied upon thebuilding code applicable at the time of the accident in 2007, while the stairway was constructedin the early 1990s, and the expert failed to "offer concrete proof of the existence of therelied-upon standard as of the relevant time" (Hotaling v City of New York, 55 AD3d 396, 398 [2008], affd12 NY3d 862 [2009]; see generally Trimarco v Klein, 56 NY2d 98 [1982]).Present—Centra, J.P., Peradotto, Lindley and Sconiers, JJ.