Opinion
May 6, 1993
Appeal from the Supreme Court, New York County (William Davis, J.).
While we agree with defendant that the IAS Court should not have considered the police report containing the hearsay statement that pertained to the ultimate factual issue in the case, namely, that the decedent had fallen from a ladder (see, Sansevere v United Parcel Serv., 181 A.D.2d 521, 524), we nevertheless affirm since, even if the police report is disregarded, the proof adduced by defendant in support of his motion for summary judgment did not conclusively demonstrate that the decedent did not use the allegedly defective ladder (see, Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). The pertinent considerations were aptly noted by the IAS Court, namely, that negligence cases by their very nature do not usually lend themselves to summary judgment (Ugarriza v Schmieder, 46 N.Y.2d 471, 474); that in a wrongful death action, such as this, circumstantial evidence may be afforded a greater degree of weight than in cases where there are eyewitnesses to the occurrence (Horne v Metropolitan Tr. Auth., 82 A.D.2d 909, 910, citing Noseworthy v City of New York, 298 N.Y. 76); and that the possibility that an accident may have been caused by factors other than the defendant's negligence does not mandate a conclusion that the plaintiff had failed to make out a prima facie case (Brito v Manhattan Bronx Surface Tr. Operating Auth., 188 A.D.2d 253, 254 [citing Ingersoll v Liberty Bank, 278 N.Y. 1, 7], lv granted 189 A.D.2d 1093).
Concur — Ellerin, J.P., Ross, Asch, Kassal and Rubin, JJ.