Opinion
May 24, 1962
Judgment in the sum of $70,238 in favor of plaintiff in a personal injury negligence action, unanimously reversed, on the law and on the facts, with costs to defendant-appellant, and the complaint dismissed. Plaintiff has failed to establish actionable negligence against defendant. Defendant was not in possession of the premises. ( Berman v. H.J. Enterprises, Inc., 13 A.D.2d 199. ) It is undisputed that at the time and site of the occurrence the lighting equipment was adequate and usable. The tenant, who was plaintiff's employer, was in possession. The obligation, if any, to turn on the light on the premises at the time of the occurrence was at best the employer's. Further, plaintiff was guilty of contributory negligence by proceeding in the darkness in an area unfamiliar to him, especially when an approach to the men's room familiar to the plaintiff which avoided the stairway was available. ( Dunn v. White Plains Housing Auth., 8 A.D.2d 839, affd. 7 N.Y.2d 944.) Settle order on notice.
Concur — Breitel, J.P., Rabin, McNally, Eager and Steuer, JJ.