Szozda v. Slattery Construction Corp.

Order of the Appellate Term of the Supreme Court, First Department, entered on March 9, 1973, and the judgment of the Civil Court of the City of New York, New York County, entered on January 6, 1972, unanimously reversed, on the law and facts, the judgment vacated, and the complaints dismissed, with costs in all courts. Appellant sliall recover of respondents $60 costs and disbursements of this appeal. We adopt the reasoning and findings contained in the dissenting opinion at the Appellate Term except the conclusion that a new trial should be had. As did Justice Quinn, we feel that the evidence discloses no negligence on the part of the appellant, but if such there be, it appears at least equally likely that the accident was caused by the highway plating installed by an undisclosed contractor and over which plaintiffs’ vehicle passed before overturning, or by a defect or improper maintenance of the truck. “ Where the precise cause of an accident is left to conjecture and may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then the plaintiff is not entitled to recover and the complaint should be dismissed.” (Solomon v. Brooklyn Cornell Utilities, 265 App. Div. 886, affd. 291 N. Y. 593.) If we did not dismiss, we would reverse and direct a new trial as against the weight of the credible evidence. Concur — Markewich, J. P., Murphy, Steuer, Tilzer and Macken, JJ.