Opinion
November 28, 1988
Appeal from the Supreme Court, Queens County (Graci, J.).
Ordered that the judgment is affirmed, with costs.
The sole issue on appeal is the propriety of the trial court's granting of the respondent's motion for judgment as a matter of law on the issue of liability. The respondent was injured when he was struck in the back by a large container being transported on a jack operated by an employee of the defendant. The employee claimed that the respondent saw him approaching, moved out of the way, and then somehow moved back into the path of the jack. He acknowledged, however, that he never saw the respondent move. The respondent and several other witnesses to the accident testified that the respondent never saw the employee approach, and certainly never moved out of the way.
It is well established that the standard to be applied in deciding a motion for judgment as a matter of law is whether the trial court could find that by no rational process could the trier of fact base a finding in favor of the party opposing the motion upon the evidence presented (Lipsius v. White, 91 A.D.2d 271; McCloud v. Marcantonio, 106 A.D.2d 493; Dolitsky v. Bay Isle Oil Co., 111 A.D.2d 366). Here the respondent clearly established that his injuries were the result of the negligence of the defendant's employee. The evidence to the contrary, the employee's testimony that the respondent must have moved into the hand jack's path, is based upon "conjecture and speculation which is no substitute for proof" (Kinch v. Adams, 46 A.D.2d 467, 469; De Mayo v. Yates Realty Corp., 35 A.D.2d 700, affd 28 N.Y.2d 894). Under the circumstances, the trial court did not err in granting the respondent's motion for judgment as a matter of law on the issue of liability. Mangano, J.P., Brown, Kooper and Harwood, JJ., concur.