Opinion
January 30, 1995
Appeal from the Supreme Court, Queens County (Rutledge, J.).
Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.
A plaintiff in a negligence action who dies as a result of an accident is not held to as high a degree of proof as an injured plaintiff who can describe the occurrence (Noseworthy v. City of New York, 298 N.Y. 76; Oginski v. Rosenberg, 115 A.D.2d 463). "Speculation, guess and surmise, however, may not be substituted for competent evidence, and where * * * there are several possible causes of an accident, one or more of which a defendant is not responsible for, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible" (Agius v. State of New York, 50 A.D.2d 1049, 1050; Bernstein v. City of New York, 69 N.Y.2d 1020; Stuart-Bullock v. State of New York, 38 A.D.2d 626, affd 33 N.Y.2d 418). At bar, even after viewing the evidence in the light most favorable to the plaintiff, there was no showing that the alleged defect was the proximate cause of the decedent's accident.
In light of our determination, we need not reach the other issues raised by the defendants. Lawrence, J.P., Santucci, Altman and Goldstein, JJ., concur.