Small v. 870-7th Avenue Corp.

273 A.D. 216, 76 N.Y.S.2d 384, 1948 N.Y. App. Div. LEXIS 4567

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1948
• Status: Published

Opinion

Per Curiam.

Plaintiff appeals from judgment in defendant’s favor entered on the court’s dismissal of the complaint at close of plaintiff’s case.

On plaintiff’s proof, he was injured, December 15,1944, when a large plate glass in one of the doors to the entrance of defendant’s premises shattered and broke after the door had “ stuck ” and was hard to open as plaintiff was entering the hotel. Plaintiff also testified to claimed defective conditions in both the glass and the door when he entered through the same door two weeks before the acccident. In the light of all the facts adduced in plaintiff’s proof including the testimony concerning the alleged defective condition of the same door and the glass therein two weeks prior to the accident, we think the evidence was sufficient to establish a prima facie case and the court should not have granted the defendant’s motion to dismiss at close of plaintiff’s case.

The judgment in defendant’s favor dismissing the complaint should be reversed and a new trial ordered, with costs to appellant to abide the event.

Peck, P. J., Glennon, Dore, Van Voorhis and Shientag, JJ., concur.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.