Axelrod v. Casella

Appellate Division of the Supreme Court of New York

Axelrod v. Casella

48 A.D.2d 822, 368 N.Y.S.2d 265, 1975 N.Y. App. Div. LEXIS 10028

Appellate Division of the Supreme Court of the State of New York·Decided June 2, 1975·Published·Cited by 1 cases

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered February 9, 1974, in favor of defendant Casella, upon the trial court’s dismissal of the complaint at the close of plaintiff’s case, at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No fact questions have been raised or considered. Upon this record, and granting to plaintiff every favorable inference to which he is entitled (Sagorsky v Malyon, 307 NY 584, 586; De Wald v Seidenberg, 297 NY 335, 336-337; Faso v City of New York, 18 AD2d 1005), jury questions concerning defendant Casella’s negligence and plaintiff’s contributory negligence were presented. As a prima facie case was made out, it was error to dismiss plaintiff’s complaint (cf. Fuhrmann v Hanye, 1 AD2d 894, affd. 1 NY2d 892). Martuscello, Acting P. J., Latham, Cohalan, Christ and Munder, JJ., concur.

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In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered February 9, 1974, in favor of defendant Casella, upon the trial court’s dismissal of the complaint at the close of plaintiff’s case, at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No fact questions have been raised or considered. Upon this record, and granting to plaintiff every favorable inference to which he is entitled (Sagorsky v Malyon, 307 NY 584, 586; De Wald v Seidenberg, 297 NY 335, 336-337; Faso v City of New York, 18 AD2d 1005), jury questions concerning defendant Casella’s negligence and plaintiff’s contributory negligence were presented. As a prima facie case was made out, it was error to dismiss plaintiff’s complaint (cf. Fuhrmann v Hanye, 1 AD2d 894, affd. 1 NY2d 892). Martuscello, Acting P. J., Latham, Cohalan, Christ and Munder, JJ., concur.

Axelrod v. Casella, 48 A.D.2d 822, 368 N.Y.S.2d 265, 1975 N.Y. App. Div. LEXIS 10028 (N.Y. Ct. App. 1975).

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Opinion

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