                          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
                              -3-                519593

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
