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De Mayo v. Yates Realty Corp. - 35 A.D.2d 700, 314 N.Y.S.2d 918 (App. Div. 1970)

Rule:

Speculation and surmise are not a substitute for proof and where evidence is capable of an interpretation equally consistent with the presence or absence of a wrongful act, that meaning must be ascribed which accords with its absence.

In a nonjury case, it is within the province of the appellate court to grant the judgment which, upon the evidence should have been granted by the trial court. 

Facts:

While the tenant was walking along a corridor in the landlord's building, the lights went out, and the tenant alleged that she lost her balance and was injured. Prior to the accident, the contractor had been hired by the landlord to install lights in the building. The tenants filed an action against the contractor and the landlord for damages for personal injuries. The trial court entered judgment against the contractor and in favor of the tenant. The contractor appealed.

Issue:

Was it proper for the trial court to rule against the contractor?

Answer:

No.

Conclusion:

The court reversed the portion of the order finding against the contractor on the issue of liability. In so ruling, the court held that the tenant failed to establish by a fair preponderance of the evidence that the lights were turned off by an employee of the contractor. The court noted that, based upon the tenant's daughter's testimony, it was clear that the accident did not happen in the manner that the tenant suggested. Moreover, the court emphasized that the uncontroverted evidence established that the contractor had completed the lighting project before the accident, and that there were no employees of the contractor in the building at the time of the accident. Consequently, the court found that any judgment for the tenant would have been based on pure speculation. Finally, the court held that it was within its province to grant judgment upon the evidence.

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