Scheer v. City of New York

In an action to recover damages for wrongful death, etc., the defendants separately appeal from a judgment of the Supreme Court, Queens County (Rutledge, J.), entered March 22, 1993, which, inter alia, upon a jury verdict, finding the defendant City of New York 75% at fault in the happening of the accident and the defendant Consolidated Edison Corporation of New York 25% at fault, is in favor of the plaintiff as the Executor of the Estate of Edna Birnbaum and against them in the principal sum of $254,812.30.

Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.

A plaintiff in a negligence action who dies as a result of an accident is not held to as high a degree of proof as an injured plaintiff who can describe the occurrence (Noseworthy v City of New York, 298 NY 76 ; Oginski v Rosenberg, 115 AD2d 463 ). "Speculation, guess and surmise, however, may not be substituted for competent evidence, and where * * * there are several possible causes of an accident, one or more of which a defendant is not responsible for, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible” (Agius v State of New York, 50 AD2d 1049 , 1050; Bernstein v City of New York, 69 NY2d 1020 ; Stuart-Bullock v State of New York, 38 AD2d 626 , affd 33 NY2d 418 ). At bar, even after viewing the evidence in the light most favorable to the plaintiff, there was no showing that the . alleged defect was the proximate cause of the decedent’s accident.

In light of our determination, we need not reach the other