Opinion
2002-05100
Argued April 25, 2003.
May 19, 2003.
In three related actions to recover damages for personal injuries, the plaintiff appeals in Action Nos. 1 and 3, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 24, 2002, as granted the separate motions of George A. Fuller Company, a defendant in Action No. 1 and United Iron, Inc., a defendant in Action No. 3, which were for summary judgment dismissing the complaints in those actions insofar as asserted against those defendants.
Sullivan Papain Block McGrath Cannavo, P.C., New York, N.Y. (Stephen C. Glasser and Stefanie R. Cardarelli of counsel), for appellant.
Ivone, Devine Jensen, LLP, Lake Success, N.Y. (Brian E. Lee of counsel), for respondent George A. Fuller Company in Action No. 1 and defendants Stateside Construction Corp. and, George A. Fuller Company and Stateside Construction Corp., a joint venture.
Joseph C. Bellard (Carol R. Finocchio, New York, N.Y. [Lisa M. Comeau] of counsel), for respondent United Iron, Inc., in Action No. 3.
Before: ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff was injured when a glass pane fell out of a window and cut her hand. She alleges that the defendants negligently left the window open during renovations and that the defendants left the window in a defective condition. The defendants George A. Fuller Company and United Iron, Inc. (hereinafter the respondents), demonstrated their prima facie entitlement to judgment as a matter of law by showing that the conduct of their respective employees did not cause the plaintiff's injury (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320). In opposition, the plaintiff relied on circumstantial evidence that employees of the respondents left the allegedly defective window open. This assumes that merely leaving the window open is a sufficient predicate for liability, a point we need not decide. To establish a prima facie case of negligence based on circumstantial evidence, the plaintiff was required to prove that it was "more likely" or "more reasonable" that the alleged injury was caused by the respondents' negligence than by some other agency (see Nigri v. City of New York, 294 A.D.2d 477, 478; cf. Gayle v. City of New York, 92 N.Y.2d 936, 937; Schneider v. Kings Highway Hosp. Ctr., 67 N.Y.2d 743, 744). The plaintiff did not offer sufficient proof to render other plausible causes of the accident sufficiently remote. Therefore, the Supreme Court properly found that there is no triable issue of fact as to whether the respondents are liable for her injury.
FLORIO, J.P., SCHMIDT, TOWNES and CRANE, JJ., concur.