De Mayo v. Yates Realty Corp.

• Decision Date: 20 October 1970
• Citation: 314 N.Y.S.2d 918,35 A.D.2d 700
• Parties: Mattie DeMAYO, Plaintiff-Respondent, v. YATES REALTY CORP., Defendant, and More Lite Electrical Service, Inc., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 918

314 N.Y.S.2d 918

35 A.D.2d 700

Mattie DeMAYO, Plaintiff-Respondent, v. YATES REALTY CORP., Defendant, and More Lite Electrical Service, Inc., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 20, 1970.

B. Meyerson, Brooklyn, for plaintiff-respondent.

W. F. McNulty, New York City, for defendant-appellant.

Before EAGER, J.P., and CAPOZZOLI, McGIVERN, MARKEWICH, and McNALLY, JJ.

PER CURIAM.

On March 2, 1965, the defendant Yates Realty Corp., was the owner of a multiple dwelling in the Borough of Queens, City of New York. Plaintiff was a tenant of one of the ground floor apartments. She claims that, while she was walking along the corridor leading from her apartment to the lobby of the building, which was two steps lower than the corridor, the lights in the corridor suddenly went off and that she lost her balance and fell while she was walking down the two steps. More Lite was completing a contract with the owner for the installation of new and higher voltage electrical currents in the building on the date the accident occurred.

The issue of liability was tried before the court without a jury. At the close of the proof, the court granted the motion of Yates Realty to dismiss and directed judgment against More Lite on the issue of liability. We find that the plaintiff failed to establish by a fair preponderance of the proof that the lights were turned off by an employee of More Lite. Speculation and surmise are not a substitute for proof and where evidence is capable of an interpretation equally consistent with the presence or absence of a wrongful act, that meaning must be ascribed which accords with its absence. Lahr v. Tirrill, 274 N.Y. 112, 117, 8 N.E.2d 298, 300; Digelormo v. Weil, 260 N.Y. 192, 199--200, 183 N.E. 360, 362, 363. The record establishes that the accident happened under different circumstances than those claimed by the plaintiff at the trial. Plaintiff's daughter admitted on cross-examination that she gave the physician who treated her mother for her injury a history of the accident; that she told him that the accident occurred while her mother was going to the incinerator. The daughter denied she ever made such statement to the treating physician, but admitted that she made such statement to the first physician who was summoned to treat her mother when the family physician could not be reached. She further admitted she told a physician at the hospital that her mother 'slipped over something' while she was taking some garbage to the incinerator and fell. She testified that she made this statement to 'Just my doctor.' Further, on her cross-examination, she was asked did she say (meaning her mother) that she slipped and fell down the steps. She answered that her mother said 'No. I slipped and fell down the hall'. The daughter at another time in her testimony stated she did not learn how the accident happened until three or four days after the occurrence.

There is no proof that More Lite or its employees shut off the lights in the corridor. The uncontradicted testimony is that the work on the corridor lights was completed before the occurrence and that the switch therefor is independent of the power switch for the apartments. The plaintiff, the only eyewitness to the accident, alleges in her bill of particulars that the accident occurred at 5:30 P.M. It is undisputed that no employees of More Lite had been working in the building at that time. At the trial, plaintiff testified that the accident occurred about 4:00 or 4:30 P.M. Moreover, under all the circumstances it would appear that the lighting at the alleged site of the occurrence was more than adequate for the plaintiff to see the steps. We find no factual basis for the inference drawn by the trial justice that the electricity was turned off in the afternoon of the date of the accident by employees of More Lite. This speculative conclusion is not supported by the record.

In this non-jury case, it is within the province of this court to grant the judgment which, upon the evidence, should have been granted by the trial court. Bernardine v. City of New York, 294 N.Y. 361, 366, 62 N.E.2d 604, 606; York Mtge. Corp. v. Clotar Constr. Corp., 254 N.Y. 128, 172 N.E. 265; Calabria v. City & Suburban Homes Co., 5 A.D.2d 983, 172 N.Y.S.2d 826; aff'd 5 N.Y.2d 918, 183 N.Y.S.2d 97, 156 N.E.2d 723; Lamport v. Smedley, 213 N.Y. 82, 106 N.E. 922; McCarthy v. Port of New York Authority, 30 A.D.2d 111, 114, 290 N.Y.S.2d 255, 257--258; Bruno v. Kosnac, 13 A.D.2d 350, 213 N.Y.S.2d 784; Greater New York Mut. Ins. Co. v. Perry, 6 A.D.2d 432, 178 N.Y.S.2d 760; Margolies v. City of New York, 3 A.D.2d 734, 160 N.Y.S.2d 821; Gross v. Molmar Bus Transp. Co., 3 A.D.2d 703, 159 N.Y.S.2d 724; Mouren v. Great Atlantic & Pacific Tea Co., 1 A.D.2d 767, 148 N.Y.S.2d 1; Leonard v. S. G. Frantz Co., 268 App.Div. 144, 148, 49 N.Y.S.2d 329, 332--333; 9 Carmody-Wait, New York Practice, pp. 603--604, § 177; 11 Carmody-Wait 2d, § 72:158. We are not required to give credence to testimony so inherently improbable that we are morally certain it is not true. McCarthy v. Port of New York Authority, Supra; Bottalico v. City of New York, 281 App.Div. 339, 341, 119 N.Y.S.2d 704, 705--706.

There are cases such as those cited in the dissent in which the undoubted power of this Court to render judgment which the Trial Court should have granted has not been exercised. The instant case is not within the principle of such cases. Conklin v. State of New York, 22 A.D.2d 481, 256 N.Y.S.2d 477, states the rule applicable to condemnation matters. There the Court at page 482, 256 N.Y.S.2d at page 478, said:

'Although this court has the undoubted power to make new and appropriate findings and to render judgment thereof (Victor Catering Co. v. Nasca, 8 A.D.2d 5, 185 N.Y.S.2d 466; Ruegg v. Fairfield Securities Corp., 308 N.Y. 313, 125 N.E.2d 585; Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604; 9 Carmody-Wait, New York Practice § 473, pp. 183--184; § 171, pp. 597--599), we have not, in appropriation cases, ordinarily done so; * * *'.

Power v. Falk, 15 A.D.2d 216, 222 N.Y.S.2d 261, cited in Conklin involved an action seeking delivery of stock certificates and an accounting for rents of a building without proof of ultimate facts. Here, apart from shifting the time of the alleged occurrence from when employees of More Lite were not on the premises to a time within their working hours, the plaintiff failed to produce evidence of any reason on the part of More Lite for turning off the corridor lights. The uncontradicted evidence is that the work on the corridor lights was completed long before the occurrence. There is no evidence connecting More Lite with the alleged occurrence, even if it be assumed its employees were on the premises. Kundla v. Symans, 9 A.D.2d 1021, 194 N.Y.S.2d 251, also cited in Conklin, involved a confused and incomplete records. Here the record is clear, and there is no suggestion of any additional relevant evidence on the part of the plaintiff.

Interlocutory judgment (Kupferman, J.), entered on September 15, 1969, adjudging liability on the part of the defendant More Lite Electrical Service, Inc. ('More Lite'), and ordering an assessment, reversed on the law and facts and the complaint dismissed as to defendant-appellant. Defendant-appellant shall recover of plaintiff $50 costs and disbursements of the appeal.

All concur except CAPOZZOLI, J., who dissents in part in the following memorandum:

I concur in the reversal, but I would remand for a new trial in the interests of justice.

And McGIVERN, J., who dissents in the following memorandum:

I would affirm. In my view the Trial Judge had no other choice. The defendant rested at the end of the plaintiff's case and declined to go forward. I find the plaintiff made out a Prima facie case. Yet the defendant refused to make any effort to impair the inferences resting on the plaintiff's case. Since the defendant would not assume the burden of producing evidence in rebuttal, the Trial Judge properly found in favor of the plaintiff.

The Trial Judge clearly adopted the version of the plaintiff that the lights went out while she was descending the stairs. Under the circumstances, plaintiff was within the precedents and entitled to recover. I do not think we should take the extreme step of both reversing the judgment and dismissing the complaint on such a truncated record because we would differently interpret what there is of the record. The case is a most simplistic one of a common category, turning upon a...