Kraus v. B. Gertz, Inc.

38 A.D.2d 857, 330 N.Y.S.2d 601

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the 'Supreme Court, Queens County, entered June 30, 1971, which dismissed her complaint upon the trial court’s decision at the close of the evidence upon a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The questions of fact have not been considered. In our opinion, plaintiff made out a prima facie case. She allegedly slipped and fell on a wet floor adjacent to a water fountain in defendant’s department store. The proof adduced was sufficient from which the inferences could reasonably be drawn that the condition was a recurring one; that defendant, through its employees, had actual notice of the condition; and that the failure to take protective measures constituted negligence. The issues of whether defendant’s employee mopped the floor only minutes before the accident and whether plaintiff was guilty of contributory negligence are for the jury. Munder, Acting P. J., Martuscello, Gulotta, Brennan and Benjamin, JJ., concur.