Opinion
February 2, 1970
In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered May 2, 1968 after a jury trial, in favor of defendants upon the trial court's dismissal of the complaint at the close of the entire case. Judgment affirmed insofar as it is in favor of defendant Monitor Plumbing Heating Co., Inc., without costs; and, as to defendant Dartwood Realty Co., Inc., judgment reversed, on the law, action severed, and new trial granted, with costs to abide the event. In our opinion the proof raised a question for the jury as to whether defendant Dartwood Realty Co., Inc., violated subdivision (i) of rule 23.3 of the Industrial Code (12 NYCRR 23.3, subd. [i]). If it did, that would be some evidence of negligence on its part ( Conte v. Large Scale Development Corp., 10 N.Y.2d 20, 29). We further believe that on this proof there was no issue raised with respect to common-law negligence on the part of either Dartwood or its codefendant, Monitor Plumbing Heating Co., Inc. Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.