Costantino v. Webel

57 A.D.3d 472, 869 N.Y.2d 179

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 2008
• Status: Published

Opinion

Proximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident; however, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action (see Oettinger v Amerada Hess Corp., 15 AD3d 638 [2005]). In this case, the defendants made a prima showing of entitlement to judgment as a matter of law by establishing that the plaintiff could not identify the cause of her fall without engaging in speculation (see Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434 [2006]; Christopher v New York City Tr. Auth., 300 AD2d 336 [2002]; Barnes v Di Benedetto, 294 AD2d 655 [2002]).

In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). The affidavit of her expert, which alleged that unsafe conditions in the doorway where the plaintiff fell violated various provisions of the building code, could not create a reasonable inference of causation in the absence of evidence connecting the alleged violations to the accident (see Reiff v Beechwood Browns Rd. Bldg. Corp., 54 AD3d 1015 [2008]; Reed v Piran Realty Corp., 30 AD3d 319 [2006]). A determination that the alleged building code violations proximately caused the plaintiff’s fall, rather than a misstep or loss of balance, would be mere speculation (see Lissauer v Shaarei Halacha, Inc., 37 AD3d 427 [2007]). Skelos, J.E, Lifson, Santucci and Balkin, JJ., concur.