State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 14, 2015 519593 

________________________________

KAREN L. PASCUCCI, as

Executor of the Estate of

MARY ANN CONRAD, Deceased, 

Appellant,

v MEMORANDUM AND ORDER

MPM REAL ESTATE, LLC, 

Respondent.

________________________________

Calendar Date: March 23, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Levene Gouldin & Thompson, LLP, Binghamton (Philip C.

Johnson of counsel), for appellant.

Coughlin & Gerhart, LLP, Binghamton (Keith A. O'Hara of

counsel), for respondent.

__________

McCarthy, J.P.

Appeal from an order of the Supreme Court (Reynolds

Fitzgerald, J.), entered May 27, 2014 in Broome County, which

granted defendant's motion for summary judgment dismissing the

complaint.

Mary Ann Conrad (hereinafter decedent) suffered a fall in

the bathtub of an apartment that she leased from defendant. 

Decedent remained in the bathtub for nearly a day until

plaintiff, her daughter, discovered her. As a result of her

injuries and complications arising therefrom, decedent died a few

days later. Thereafter, plaintiff commenced this action against

defendant seeking damages for wrongful death and pain and
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suffering, alleging that the negligent design of the bathroom

caused decedent to fall while exiting the bathtub. Defendant

moved for summary judgment dismissing the complaint, arguing that

plaintiff could not establish the cause of the fall without

engaging in speculation. Supreme Court granted defendant's

motion and plaintiff now appeals. We affirm.

"[A] defendant can make its prima facie showing of

entitlement to judgment as a matter of law by establishing that

[a] plaintiff cannot identify the cause of [a person's] fall

without engaging in speculation" (Ash v City of New York, 109

AD3d 854, 855 [2013]; see Buglione v Spagnoletti, 123 AD3d 867,

867 [2014]; Martin v Wilson Mem. Hosp., 2 AD3d 938, 939, [2003]). 

However, proximate cause can be established wholly through

circumstantial evidence that renders a defendant's negligence the

more likely cause of an accident than other potential causes (see

Pipp v Guthrie Clinic, Ltd., 80 AD3d 1014, 1015 [2011]; Timmins v

Benjamin, 77 AD3d 1254, 1256 [2010]; Ellis v County of Albany,

205 AD2d 1005, 1007 [1994]). Such circumstantial "proof must

render other causes sufficiently remote such that the jury can

base its verdict on logical inferences drawn from the evidence,

not merely on speculation" (Timmins v Benjamin, 77 AD3d at 1256;

see Feder v Tower Air, Inc., 12 AD3d 190, 191 [2004]). 

Viewing the evidence in the light most favorable to

plaintiff, a jury could not conclude, without resorting to

speculation, that any defect in the design of the bathroom was a

proximate cause of decedent's fall. Decedent, who was conscious

and lucid when plaintiff found her, reported to plaintiff that

she had fallen while trying to get out of the bathtub and

subsequently reported to medical providers that she had fallen

when she tried to get up from sitting in the bathtub. Otherwise,

defendant's submissions established that decedent was 76 years

old, that she suffered from chronic obstructive pulmonary

disease, diabetes, osteoporosis, sleep apnea and obesity and that

she relied on oxygen therapy. Although plaintiff testified that

she was unaware of any incident where her mother had fallen due

to dizziness, medical records from approximately a year prior to

decedent's death indicated that decedent reported experiencing

episodes of mild dizziness and that she had fallen during one

such episode. According to plaintiff's testimony, decedent had
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begun to use a cane prior to her fall and had suffered falls on

other occasions. 

Considering this evidence, decedent's reports provide no

explanation as to what caused her fall. Further, defendant's

submissions provided other potential causes of the fall; decedent

had suffered previous falls, at least one of which – according to

decedent's own report as set forth in her medical records – was

the result of a medical condition, i.e., recurring mild

dizziness. Accordingly, defendant met its initial burden by

showing that plaintiff could not establish anything more than a

possibility that decedent's fall was caused by any defective

design (see Costantino v Webel, 57 AD3d 472, 472 [2008];

Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 877

[2004], lv dismissed 4 NY3d 869 [2005]; Silva v Village Sq. of

Penna, 251 AD2d 944, 945 [1998]; Dapp v Larson, 240 AD2d 918, 919

[1997]).

Plaintiff's expert affidavit failed to raise a triable

issue of fact as to proximate cause. That expert relied on

decedent's reports and the positioning of decedent when she was

found to support his conclusion that the negligent placement of

the bathroom sink was a substantial cause of decedent's fall. As

previously mentioned, decedent's reports provide no rational

basis to determine the cause of her fall. Further, even assuming

that the expert was correct that the positioning of decedent

after the fall indicated that she had turned to exit the tub,

that fact does not support an inference that it was more likely

than not that decedent was attempting to navigate around the sink

when she fell (see Alston v Zabar's & Co., 92 AD3d 553, 553

[2012]; Raghu v New York City Hous. Auth., 72 AD3d 480, 482

[2010]; Reid v Schalmont School Dist., 50 AD3d 1323, 1325 [2008];

Kane v Estia Greek Rest., 4 AD3d 189, 190-191 [2004]). 

Accordingly, Supreme Court properly granted defendant's motion

for summary judgment dismissing the complaint.

Egan Jr., Devine and Clark, JJ., concur.
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ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court