Levine, J. (dissenting). The uncontradicted evidence, from the affidavit of plaintiff Catherine Kadyszewski (hereinafter plaintiff), is that she fell after completing the acts of getting out of bed, taking hold of her walker with both hands and ambulating almost to the door of her room leading to the hall where the bathroom which was her destination was located. "Your deponent asserts that because the bed rails were not up, your deponent was able to reach for the walker provided by the hospital and slip out of bed unassisted. Thereafter, your deponent attempted to walk to the bathroom and fell just inside the doorway” (emphasis supplied). She was found by a nurse at that location. The uncontradicted evidence also was that top side rails do not prevent a patient who has the physical capability of getting out of bed from purposely doing so. Rather, the rails are designed to prevent a patient from inadvertently falling out of bed, and the heightened risk of this kind of accident for elderly patients was the basis for the hospital rule requiring the use of siderails in an upright position at night for patients at least 65 years of age. Other mechanical restraints are used to prevent patients from purposely getting out of bed, and they are only employed upon the order of a patient’s physician. Not only did plaintiff’s physician refrain from ordering the use of restraints to prevent her from getting out of bed, but he actually directed that she be permitted to walk to the bathroom without assistance.
Based upon the foregoing undisputed facts, we are of the view that the failure, if any, on the part of defendant Ellis Hospital Association (hereinafter defendant) to have the top siderails on plaintiff’s bed in an upright position cannot be considered a proximate cause of her accident, as a matter of law. First, in light of the uncontradicted proof that top side-rails would not have prevented plaintiff from leaving her bed to go to the bathroom, any inference that the failure to have the siderails in place was a cause in fact of plaintiff’s injury would be speculative at best and would, thus, be insufficient to support a jury finding of causation (see, Tober v Mount Sinai Hosp., 149 AD2d 692, 694).
Even if one could reasonably conclude that "but for” the *768absence of top siderails, plaintiff would not have left her bed and, thus, would not have fallen, plaintiff’s proof that defendant’s failure in this regard was a proximate cause of her injury is, nonetheless, insufficient as a matter of law. It must be remembered that the only viable theory of negligence here is based upon defendant’s alleged breach of its own rule regarding the use of siderails for elderly patients; without such a rule, the failure of plaintiff’s physician to order the use of siderails would be a complete defense for defendant (see, Mossman v Albany Med. Ctr. Hosp., 34 AD2d 263, 264; see also, Hering v McShane, 145 AD2d 683). The uncontradicted proof, however, is that the purpose of the rule was not to prevent patients from falling down after purposely leaving their beds, but to protect patients from the risk of accidentally falling out of bed. Under these circumstances, even if the rule relied upon by the majority had been codified by statute, so that the breach thereof would have been negligence per se, liability against defendant could not be imposed here because plaintiff’s accident was unrelated to the kind of hazard from which the rule was intended to safeguard her. "Manifestly, a violation of [a] statute cannot 'establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury’ ” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513, quoting DeHaen v Rockwood Sprinkler Co., 258 NY 350, 353). A fortiori, the mere violation of a hospital rule cannot give rise to liability here for an injury unrelated to the hazard the rule was designed to protect against. Put another way, any violation of the hospital rule regarding the erecting of top siderails for elderly patients at most merely furnished the condition or occasion for the occurrence of plaintiff’s accident, rather than one of its causes (see, Sheehan v City of New York, 40 NY2d 496, 502-503; see also, Margolin v Friedman, 43 NY2d 982, 983; Wirth v State of New York, 161 AD2d 1042, 1043-1044, appeal dismissed 76 NY2d 876, lv denied 77 NY2d 802).
Accordingly, we vote to affirm Supreme Court’s grant of summary judgment dismissing the complaint against defendant.
Crew III, J., concurs. Ordered that the order is modified, on the law, with costs to plaintiffs, by reversing so much thereof as granted defendant Ellis Hospital Association’s motion for summary judgment dismissing the negligence cause of action contained in the complaint; motion denied to that extent; and, as so modified, affirmed.