NAPOLITANO v. DHINGRA

Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

Elena NAPOLITANO, Appellant, v. Munish Kumar DHINGRA, et al., Respondents.

Decided: April 27, 1998

Before BRACKEN, J.P., and THOMPSON, PIZZUTO and FLORIO, JJ. Dinkes & Morelli, New York City (David S. Ratner and Laurie DiPreta, of counsel;  Beth Diamond, on the brief), for appellant. Smith Mazure Director Wilkins Young Yagerman & Tarallo, P.C., New York City (Mark Yagerman and Steven I. Brizel, of counsel), for respondents.

In a negligence action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (Cusick, J.), entered February 10, 1997, which, upon the defendants' motion, made at the close of the plaintiff's case, dismissed the complaint for failure to establish a prima facie case of negligence.

ORDERED that the judgment is reversed, on the law, the motion is denied, and a new trial is granted, with costs to abide the event.

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff when she slipped and fell on a throw rug in the defendants' home.   At the close of the plaintiff's case, the defendants moved to dismiss the complaint as a matter of law on the ground that the plaintiff had failed to establish a prima facie case of negligence.   The Supreme Court granted the defendants' motion, and this appeal ensued.   We reverse.

 It is well established that to be entitled to a judgment as a matter of law, “the defendant movant must demonstrate that the plaintiff failed to make out a prima facie case;  the plaintiff's evidence must be accepted as true, and the plaintiff must be given the benefit of every favorable inference which can be reasonably drawn from the evidence” (Campbell v. Rogers & Wells, 218 A.D.2d 576, 580, 631 N.Y.S.2d 6;  see, Xenakis v. Vorilas, 166 A.D.2d 586, 560 N.Y.S.2d 872;  Cruz v. New York City Tr. Auth., 136 A.D.2d 196, 526 N.Y.S.2d 827).   Only when there is no rational process by which the jury could find for the plaintiff against the defendant should the motion be granted (see, Campbell v. Rogers & Wells, supra;  Harding v. Noble Taxi Corp., 182 A.D.2d 365, 582 N.Y.S.2d 1003).

 Measured by these standards, the plaintiff's evidence established a prima facie case of negligence against the defendants, and the trial court therefore erred in granting the defendants' motion for judgment following the presentation of the plaintiff's case.   Here, the testimony of the plaintiff and a housekeeper, when viewed in the appropriate light, was sufficient to establish that the floor where the accident occurred was hard, smooth, shiny, and slippery, and that the throw rug did not have an appropriate backing to prevent it from moving when stepped on (see, Ashton v. Bobruitsky, 214 A.D.2d 630, 625 N.Y.S.2d 585;  Ordway v. Hilliard, 266 App.Div. 1056, 44 N.Y.S.2d 819).   Furthermore, on the question of notice, there was evidence that the plaintiff had seen Mrs. Dhingra slip on the rug “[m]any times”, and that the plaintiff herself had informed the defendants of the dangerous condition prior to her accident.   Thus, actual notice of the defect was established for purposes of a prima facie case.   Finally, there was evidence from which it reasonably could be inferred that the condition created by the combination of a slippery floor and an unsecured throw rug was a substantial cause of the events which produced the plaintiff's injury (see, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666).  Accordingly, the court should not have granted the defendants judgment as a matter of law, and the plaintiff is entitled to a new trial.

MEMORANDUM BY THE COURT.

Copied to clipboard