Opinion
June 2, 1975
In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered February 9, 1974, in favor of defendant Casella, upon the trial court's dismissal of the complaint at the close of plaintiff's case, at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No fact questions have been raised or considered. Upon this record, and granting to plaintiff every favorable inference to which he is entitled (Sagorsky v Malyon, 307 N.Y. 584, 586; De Wald v Seidenberg, 297 N.Y. 335, 336-337; Faso v City of New York, 18 A.D.2d 1005), jury questions concerning defendant Casella's negligence and plaintiff's contributory negligence were presented. As a prima facie case was made out, it was error to dismiss plaintiff's complaint (cf. Fuhrmann v Hanye, 1 A.D.2d 894, affd. 1 N.Y.2d 892). Martuscello, Acting P.J., Latham, Cohalan, Christ and Munder, JJ., concur.