| Robinson v 211-11 N., LLC |
| 2007 NY Slip Op 09755 [46 AD3d 657] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Diane Robinson, Appellant, v 211-11 Northern, LLC,Respondent. |
—[*1] Vincent P. Crisci, New York, N.Y. (Stephanie L. Robbins of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Kings County (Held, J.), dated August 9, 2006, which, upon the granting ofthe defendant's motion pursuant to CPLR 4401 for judgment as a matter of law, made at the closeof the plaintiff's case, is in favor of the defendant and against her dismissing the complaint.
Ordered that the judgment is reversed, on the law, the motion is denied, the complaint isreinstated, and the matter is remitted to the Supreme Court, Kings County, for a new trial, withcosts to abide the event.
At the trial of this slip-and-fall case, the plaintiff adduced evidence that she slipped in apuddle of water at her place of employment, which was located on the top floor of a buildingowned by the defendant. After the fall, the plaintiff's left side was "all wet," and she noticed astain on the ceiling directly above the area where the water had pooled. The plaintiff also testifiedthat she had observed a leak in the same location approximately one year earlier. A coworkerwho witnessed the accident corroborated the presence of water on the floor in the area, andtestified that she observed water dripping from a light fixture on the ceiling just minutes beforethe accident. The coworker also testified that she had observed a leak in the same area of theceiling a few months earlier and had advised the defendant about it. It was undisputed that thedefendant was responsible for maintaining the roof of the building, and had received a priorcomplaint about a leak in a [*2]different area of the roofapproximately five months prior to the accident. The plaintiff also tendered evidence that nearlyfour inches of rain had fallen in the three days immediately preceding the accident.
At the close of the plaintiff's case, the trial court granted the defendant's motion pursuant toCPLR 4401 for judgment as a matter of law. We reverse.
"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriatewhere the trial court finds that, upon the evidence presented, there is no rational process by whichthe fact trier could base a finding in favor of the nonmoving party . . . Inconsidering the motion for judgment as a matter of law, the trial court must afford the partyopposing the motion every inference which may properly be drawn from the facts presented, andthe facts must be considered in a light most favorable to the nonmovant" (Szczerbiak v Pilat,90 NY2d 553, 556 [1997] [citation omitted]). Applying this standard, the evidence here,viewed in the light most favorable to the plaintiff, was sufficient to make out a prima facie caseof negligence against the defendant. Accordingly, the Supreme Court erred in granting thedefendant's motion for judgment as a matter of law (see CPLR 4401).
Moreover, as there must be a new trial, we note that the trial court improperly precluded theplaintiff from offering proof of a recent ceiling leak in another part of the premises to establishthat the roof of the building was in a state of disrepair, and from offering proof that pipes in theceiling were not the source of the subject leak (see Dukes v 800 Grand Concourse Owners,198 AD2d 13, 14 [1993]).
The plaintiff's remaining contentions are without merit. Crane, J.P., Fisher, Carni andMcCarthy, JJ., concur.