Patricia A. Smith v. Robert Wisch Et Al‪.‬

In a wrongful death action, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered October 22, 1979, which, at the conclusion of plaintiffs case, inter alia, dismissed the complaint as against all defendants. Judgment affirmed, without costs or disbursements. Plaintiffs intestate, Robert Smith, was employed as a roofer and, on the day he sustained his fatal injuries, was engaged in repair work which placed him upon a second story sun deck of the home defendants Gary and Ilene Eder had purchased the day before the accident. The sun deck was bordered by a fence or railing with an upper and lower crosspiece. During the morning Smith and his co-worker had ascended to and descended from the sun deck by means of a ladder, the top of which reached "just below the fence" but did not touch it. Returning from lunch, the co-worker proceeded to a different part of the house while Smith was to return to the sun deck. About 10 or 15 minutes later, the co-worker heard a crash and investigating discovered Smith on the ground below the sun deck, with about a third of the railing broken and on the ground with Smith. The ladder was still in place. There were no witnesses to the fall. Smith died of his injuries several days later. In this action against the Eders and the prior owner, Robert Wisch, the negligence alleged to have occasioned Smiths death was, inter alia, the defendants maintenance of the sun deck railing in improper repair and the Eders failure to provide Smith with a safe place to work. At the conclusion of plaintiffs case, Special Term dismissed the complaint. We conclude that an affirmance is required. It is clear that no one knows how the deceased came to fall, or, in fact, exactly where he was located when he fell. While we have viewed the facts attendant upon the accident most favorably to the plaintiff (Osipoff v City of New York, 286 NY 422), they may or may not bespeak negligence of someone other than the deceased; however "In order to succeed, a cause of action must be based on more than speculation" (Morales v Kiamesha Concord, 43 A.D.2d 944). From the facts preceding and surrounding the [77 A.D.2d 619 Page 620]