Opinion
December 26, 1972
In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered February 11, 1972, in favor of defendants, upon the trial court's dismissal of the complaint at the close of plaintiff's case at a jury trial. Judgment affirmed, with one joint bill of costs to respondents appearing separately and filing separate briefs. No opinion. The decision and order of this court, both dated November 15, 1972, which granted appellant's motion to exclude the brief of respondent St. Leonard's Roman Catholic Church, are hereby withdrawn and vacated; and said motion is denied. Said brief was accepted and considered by this court on the appeal. Hopkins, Acting P.J., Gulotta, Christ and Brennan, JJ., concur; Benjamin, J., dissents and votes to reverse and to grant a new trial, with the following memorandum: In my opinion, plaintiff's proof raised a jury question as to defendants' responsibility for the condition which caused her fall and as to their negligence in creating that condition or in permitting it to remain. Hence, it was error to dismiss the complaint on the law at the close of plaintiff's proof.