Union Novelty Co. v. Elias Associates

12 A.D.2d 761, 210 N.Y.S.2d 235, 1961 N.Y. App. Div. LEXIS 12935

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1961
• Status: Published

Opinion

. Judgment dismissing the complaint at the close of plaintiff’s case, unanimously reversed, on the law, and a new trial ordered, without costs to either party. In this property damage action plaintiff established, prima facie, a ground for recovery. It was entitled, therefore, to have its claim passed on by the jury, or to have defendant assume the burden of going forward. It was established that the water had accumulated on the roof from the bottom of the water tank exclusively maintained and operated by defendant owner and that it was such water which entered plaintiff’s premises. The evidence, therefore, satisfied the rule in George Foltis, Inc., v. City of New York (287 N. Y. 108). The situation was quite different in Silver v. Drydock Sav. Inst. (261 App Div. 283) where the proof failed to establish the source of the invading water. It is not clear from the record that plaintiff on the trial, as distinguished from its pleadings, rested its case solely on the theory that the pipes burst, as a result of a failure to maintain heat in the building. If it had, then, of course, the determination by the Trial Justice would have been correct. Instead it appears in the record at the very close of the proceedings that plaintiff was insisting that the case was one provable under the doctrine of res ipsa loquitur. Of course, in that event, plaintiff might be well advised to seek leave to amend its pleadings, including the bill of particulars. Concur — Breitel, J. P., Rabin, Valente, Stevens and Eager, JJ.