Lynn v. Lynn

• Decision Date: 27 June 1995
• Citation: 216 A.D.2d 194,628 N.Y.S.2d 667
• Parties: Judith L. LYNN, Plaintiff-Respondent, v. Leon LYNN, as Representative of Simon Lynn, Deceased, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 667

628 N.Y.S.2d 667

216 A.D.2d 194

Judith L. LYNN, Plaintiff-Respondent, v. Leon LYNN, as Representative of Simon Lynn, Deceased Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 27, 1995.

S.L. Alter, for plaintiff-respondent.

R.L. Esptein, for defendant-appellant.

Before SULLIVAN, J.P., and RUBIN, ASCH, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, Bronx County (Luis Gonzalez, J.), entered on or about December 7, 1994, denying appellant's motion for summary judgment dismissing the complaint, is unanimously reversed, on the law, the motion granted and the complaint dismissed, without costs or disbursements.

Plaintiff, then 81 years old, the sister of decedent, fell down a flight of stairs at her brother's home in Lawrence, Nassau County, and sustained a number of serious injuries. She brought this action alleging that the decedent was in violation of local ordinances in failing to provide a bannister or handrail; that there was inadequate lighting along the stairway; and that decedent was negligent "in failing to warn plaintiff, in general, of the dangerous condition that had existed for a sufficient length of time prior to the happening of the accident" so that decedent could and should have had knowledge and notice of it.

After depositions, the IAS court denied the still-living defendant's (decedent) motion for summary judgment finding a triable issue of fact as to whether the stairway conformed to the applicable Fire Prevention and Building Code. The nisi prius court was silent, however, on the issue of proximate causation raised by decedent. We find that plaintiff failed to make a sufficient showing that the alleged negligence of the decedent was the proximate cause of plaintiff's accident and injuries, and, accordingly, reverse.

Plaintiff suffered an amnesia as to the events surrounding her fall. She was unable to testify at deposition as to what happened, how it happened, or what caused it to happen. The last thing she remembered was taking "a couple of steps" down the stairs and then waking up in the hospital. Plaintiff contends that since she is unable to testify as to the immediate circumstances surrounding the event, she must be held to a lesser degree of proof pursuant to the Noseworthy doctrine (Noseworthy v. City of New York, 298 N.Y. 76, 78, 80 N.E.2d 744), and cites this court's decision in Cresci v. City of New York, 27 A.D.2d 277, 278 N.Y.S.2d 417, affd. 21 N.Y.2d 932, 289 N.Y.S.2d 763, 237 N.E.2d 81 for the proposition that the Noseworthy doctrine should be applied to an amnesiac plaintiff who has little or no recollection of the incident. However, in that case, we reversed judgment for the plaintiff and dismissed the complaint finding that plaintiff failed to establish negligence on the part of defendant (id. at 279, 278 N.Y.S.2d 417).

To meet her burden of proving a prima facie case, the plaintiff must show that decedent's negligence was "a substantial cause of the events which produced the injury" (Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666). As, even more recently, restated by the Court of Appeals:

A jury verdict must be based on more than mere speculation or guesswork (Feblot v. New York Times Co., 32 N.Y.2d 486, 494 [346 N.Y.S.2d 256, 299 N.E.2d 672]; Digelormo v. Weil, 260 N.Y. 192, 199 . "Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury" (Ingersoll v. Liberty Bank, 278 N.Y. 1, 7 ; see, Feblot v. New York Times Co., 32 N.Y.2d, at 495 [346 N.Y.S.2d 256, 299 N.E.2d 672], supra, citing Digelormo v. Weil, 260 N.Y. 192, 199-200 , supra; see also, Schneider v. Kings Highway Hosp. Center, 67 N.Y.2d 743, 745 [500 N.Y.S.2d 95, 490 N.E.2d 1221]. If "there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for...