Bodlovich v. Carucci

Appellate Division of the Supreme Court of New York

Bodlovich v. Carucci

38 A.D.2d 699, 328 N.Y.S.2d 149, 1972 N.Y. App. Div. LEXIS 5516

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 25, 1972

StatusPublished

This text of 38 A.D.2d 699 (Bodlovich v. Carucci) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bodlovich v. Carucci, 38 A.D.2d 699, 328 N.Y.S.2d 149, 1972 N.Y. App. Div. LEXIS 5516 (N.Y. Ct. App. 1972).

Pincite

Opinion

Judgment, Supreme Court, New York County, entered on February 17, 1971, unanimously reversed, on the law, and vacated, and a new trial directed, with costs and disbursements to abide the event. The third-party complaint and the cross complaint of G. I. Shanty Construction Co. are reinstated since the questions of fact involved in that portion of the ease have not been considered. Plaintiff and his witnesses testified to the occurrence of an accident in which plaintiff allegedly sustained certain injuries. The cause of the accident was alleged to be a defective step manufactured by defendant G. I. Shanty Construction Co. and supplied to the job premises on the morning of the accident. The plaintiff established a prima facie ease on the issue of liability. The fact [700]*700that the court chose to disbelieve the plaintiff's witnesses did not warrant the dismissal. There was conflicting testimony but matters of credibility and the weight to be accorded the testimony are within the province of the jury. The action having been dismissed, plaintiff, on appellate review, is entitled to have the evidence considered in its most favorable aspect and it cannot now be said that upon no view of the evidence could negligence have possibly been found. Concur — Stevens, P. J., McGivern, Kupferman, McNally and Macken, JJ.

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Judgment, Supreme Court, New York County, entered on February 17, 1971, unanimously reversed, on the law, and vacated, and a new trial directed, with costs and disbursements to abide the event. The third-party complaint and the cross complaint of G. I. Shanty Construction Co. are reinstated since the questions of fact involved in that portion of the ease have not been considered. Plaintiff and his witnesses testified to the occurrence of an accident in which plaintiff allegedly sustained certain injuries. The cause of the accident was alleged to be a defective step manufactured by defendant G. I. Shanty Construction Co. and supplied to the job premises on the morning of the accident. The plaintiff established a prima facie ease on the issue of liability. The fact [700]*700that the court chose to disbelieve the plaintiff's witnesses did not warrant the dismissal. There was conflicting testimony but matters of credibility and the weight to be accorded the testimony are within the province of the jury. The action having been dismissed, plaintiff, on appellate review, is entitled to have the evidence considered in its most favorable aspect and it cannot now be said that upon no view of the evidence could negligence have possibly been found. Concur — Stevens, P. J., McGivern, Kupferman, McNally and Macken, JJ.

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Bluebook (online)

38 A.D.2d 699, 328 N.Y.S.2d 149, 1972 N.Y. App. Div. LEXIS 5516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bodlovich-v-carucci-nyappdiv-1972.