Opinion
December 2, 1985
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Judgment affirmed, with one bill of costs.
Under Noseworthy v City of New York ( 298 N.Y. 76, 80) "in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence" (accord, Schechter v Klanfer, 28 N.Y.2d 228). The rationale for the so-called Noseworthy doctrine is that due to the plaintiff's inability to testify, which may have been caused by the defendant, the bulk of the evidence adduced at trial will be circumstantial (Horne v Metropolitan Tr. Auth., 82 A.D.2d 909). However, this lesser degree of proof pertains to the weight which the circumstantial evidence may be afforded by the jury, not to the standard of proof the plaintiff must meet. Therefore, the trial court's jury charge in the instant case, to the effect that if competing inferences are equally reasonable, the inference in accord with nonnegligence must be drawn, was not erroneous (cf. Wragge v Lizza Asphalt Constr. Co., 17 N.Y.2d 313; Ingersoll v Liberty Bank, 278 N.Y. 1; Abbott v St. Luke's Mem. Hosp. Center, 38 A.D.2d 176).
Furthermore, it cannot be said that the evidence adduced "so preponderates in favor of the plaintiff that the verdict for the defendant[s] could not have been reached on any fair interpretation of the evidence" (Busby v Malone, 54 A.D.2d 572; accord, Palmeri v Spies, 69 A.D.2d 968). Thus the jury's verdict must be sustained. Mangano, J.P., Rubin, Lawrence and Eiber, JJ., concur.