Opinion
June 10, 1969
Judgment entered June 28, 1968, dismissing the complaint unanimously reversed on the law and the cause remanded for retrial, with costs and disbursements to abide the event. Plaintiff, a resident at defendant Home, testified that she slipped and fell in her bathroom on her return from luncheon outside the institution; the cause of the fall was said to have been an accumulation of water on the floor, not there before her departure. She was found there by defendant's employee some hours later. Although no witness testified directly as to how the water came to be on the floor, it was established through the examination before trial of defendant's housekeeper that it was the institution's established practice to clean bathroom floors by wet mopping, using a wring pail, on the same day each week; that Tuesday, the day of the accident, was that day for plaintiff's room, that it was the housekeeper's duty and regular routine to check on such cleaning and that she had done so that day about lunch time, finding it to have been cleaned, though she did not know by which of two employees assigned to the task. Such evidence provided a basis for inference at the close of plaintiff's case, "viewed in aspect most favorable to plaintiff," that defendant's employee negligently cause the condition which brought about plaintiff's mishap (see Spett v. President Monroe Bldg. Corp., 19 N.Y.2d 203), and the motion to dismiss was erroneously granted. Plaintiff should have the opportunity to make an untrammeled presentation of her case at a new trial.
Concur — Capozzoli, J.P., Tilzer, Markewich, Nunez and McNally, JJ.