333 N.Y.S.2d 170, 284 N.E.2d 155
Court of Appeals of the State of New York.Argued March 23, 1972
Decided April 27, 1972
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, CHARLES A. LORETO, J.
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Herman Schmertz for appellants.
Sherwin Rear and Bernard Helfenstein for respondent.
Memorandum. Undoubtedly, the plaintiffs could rely on circumstantial evidence in their efforts to explain how the condition which is alleged to have precipitated the fall came about. Yet, even inferring that the condition was reasonably attributable to the acts of defendant or its agents there is a complete failure of proof on the issue of proximate cause. The record itself is vague, and relevant facts such as the length of the cord, its point of emanation or the immediate facts attending Mrs. Freeman’s movements just prior to the accident are conspicuously omitted.
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The trial court’s action in dismissing the complaint for failure to make out a prima facie case should be sustained.
Chief Judge FULD and Judges SCILEPPI, BERGAN and JASEN concur; Judges BURKE, BREITEL and GIBSON dissent and vote to reverse and grant a new trial on the ground that there was an issue of fact with respect to the conduct of hotel employees in placement of the electric cord which allegedly caused the accident.
Order affirmed, without costs, in a memorandum.