Friedman v. Sandy Sirulnick Realty Corp.

In an action to recover damages for conscious pain and suffering and wrongful death, plaintiffs appeal from a judgment of the Supreme Court, Kings County (Pino, J.), entered April 10,1981, which is in favor of defendants upon the trial court’s dismissal of the complaint at the close of the plaintiffs’ case, at a jury trial. Judgment affirmed, with one bill of costs payable jointly to respondents. In our view, the evidence, actual or proffered, by appellants was insufficient for a jury to make reasonable inferences that there was a dangerous condition known to respondents which they had a duty to remedy and which was the proximate cause of the decedents’ deaths. This is so notwithstanding the lesser standard of proof afforded appellants in this death action (see Rivenburgh v Viking Boat Co., 55 NY2d 850; Noseworthy v City of New York, 298 NY 76). Appellants’ action must be based on more than speculation (see Trimarco v Klein, 82 AD2d 20; Smith v Wisch, 77 AD2d 619, mot for lv to app den 51 NY2d 709). The trial court thus properly dismissed the complaint at the close of appellants’ dase. Thompson, J. P., Bracken, Rubin and Boyers, JJ., concur.