ROCKHILL v. PICKERING

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Supreme Court, Appellate Division, Third Department, New York.

Angela S. ROCKHILL, as Administrator of the Estate of John S. Rockhill Sr., Deceased, Appellant, v. Philip L. PICKERING Sr., as Administrator of the Estate of Philip L. Pickering Jr., Deceased, Respondent.

Decided: October 26, 2000

Before:  MERCURE, J.P., PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ. John A. Piasecki, Malone, for appellant. Craig P. Niederpruem, Utica, for respondent.

Appeal from a judgment of the Supreme Court (Lahtinen, J.), entered March 21, 2000 in Franklin County, upon a dismissal of the complaint at the close of plaintiff's case.

Plaintiff brought this action to recover for the wrongful death of decedent John S. Rockhill Sr. (hereinafter Rockhill), due to the alleged negligence of defendant's decedent, Philip L. Pickering Jr. (hereinafter Pickering).   Tragically, Rockhill and Pickering were both killed while performing mechanical work on Pickering's car.   Their bodies were found underneath the car, Pickering on the driver's side and Rockhill on the passenger's side.   It appears that during the course of the repair work, the vehicle's drive shaft was disconnected, thereby causing the vehicle to roll back off the ramps that had been used to elevate the front wheels and onto Rockhill and Pickering.   Both died of asphyxiation due to compression of the chest.   At the conclusion of plaintiff's case, Supreme Court dismissed the complaint pursuant to CPLR 4401 upon the ground that the evidence presented by plaintiff was insufficient to establish which of the men had driven the car up onto the ramps, failed to set the emergency brake or disconnected the drive shaft.   Plaintiff appeals.

 We affirm.   As a threshold matter, we note that the relaxed standard of proof generally applicable in a wrongful death action (see, Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744) does not apply here.   Inasmuch as the accident was unwitnessed and both participants were killed, the parties have equal access to the underlying facts and the essential predicate for the Noseworthy doctrine is therefore lacking (see, Orloski v. McCarthy, 274 A.D.2d 633, 634, 710 N.Y.S.2d 691, 693;  Ether v. State of New York, 235 A.D.2d 685, 687, 651 N.Y.S.2d 752;  Wright v. New York City Hous. Auth., 208 A.D.2d 327, 332, 624 N.Y.S.2d 144).

 On the merits, we agree with Supreme Court that plaintiff was unable to come forward with sufficient evidence to establish which one of the men was driving the Pickering vehicle when it was placed on the ramps, failed to set the emergency brake, placed a chock behind a rear wheel, or disconnected the drive shaft.   In our view, evidence that Pickering drove his car to the site on the date of the accident, that it was his general practice to perform his own repairs, that he owned the ramps and chock that were in use at the time of the accident and that tools and car parts were found on the driver's side of the vehicle following the accident is insufficient to give rise to a reasonable inference that Pickering, as opposed to Rockhill, committed the negligent acts.   Given both men's position under the car and their apparent joint involvement in the repair activity, for the jury to assign responsibility to either one of them would have required it to engage in speculation (see, Johnson v. Sniffen, 265 A.D.2d 304, 696 N.Y.S.2d 211;  cf., Gayle v. City of New York, 92 N.Y.2d 936, 680 N.Y.S.2d 900, 703 N.E.2d 758).

ORDERED that the judgment is affirmed, with costs.

MERCURE, J.P.

PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ., concur.

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