Wingerter v. State

58 N.Y.2d 848 (1983)

Betty Wingerter, as Administratrix of The Estate of Peter P. Wingerter, Deceased, Respondent, v. State of New York, Appellant. (Claim No. 54724.)

Court of Appeals of the State of New York.

Argued January 10, 1983.

Decided February 8, 1983.

Robert Abrams, Attorney-General (Henderson G. Riggs, Peter H. Schiff and Jeremiah Jochnowitz of counsel), for appellant.

Sheldon Hurwitz and Dan D. Kohane for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS concur.

*850MEMORANDUM.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

In this wrongful death action, brought on the theory that the State was negligent in designing, constructing and maintaining a highway, it cannot be said as a matter of law that the findings on negligence and causation made by the Court of Claims and affirmed by the Appellate Division are not supported by the record as a whole (see Padula v State of New York, 48 N.Y.2d 366, 371). All the more is this so since "in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence" (Noseworthy v City of New York, 298 N.Y. 76, 80).

Judgment appealed from, etc.