Opinion
March 25, 1974
In a negligence action to recover damages for personal injuries sustained by plaintiff Marjorie Gagnon, etc., plaintiffs appeal from a judgment of the Supreme Court, Westchester County, entered March 30, 1973, in favor of defendant, upon the trial court's dismissal of the complaint at the end of plaintiffs' case at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The appeal did not present question of fact. In our opinion, the trial court improperly dismissed the complaint on the ground of plaintiffs' failure to make out a prima facie case. Considering the evidence in the light most favorable to plaintiffs, as must be done upon a motion to dismiss a complaint at a jury trial, we think there was sufficient evidence of wetness on the painted cement floor, the dangerous condition created thereby, and failure to follow the usual custom and practice of placing sufficient rubber traction matting on the floor to present questions of fact for the jury (cf. Young v. City of New York, 33 A.D.2d 915; Fortgang v. Chase Manhattan Bank, 30 A.D.2d 532, revd. 23 N.Y.2d 895; Pignatelli v. Gimbel Bros., 285 App. Div. 625, affd. 309 N.Y. 901; with Miller v. Gimbel Bros., 262 N.Y. 107; Vaglio v. Our Lady of Mount Carmel R.C. Church, 22 A.D.2d 815; Friedfeld v. Chemical Corn Exch. Bank, 22 A.D.2d 809). Hopkins, Acting P.J., Cohalan, Christ and Munder, JJ., concur.