Opinion
November 30, 1967
Judgment appealed from affirmed, with $50 costs and disbursements to respondent. Plaintiff has failed to establish that defendant breached any duty owed to plaintiff which proximately caused the injuries complained of. No actionable negligence is proved. ( Newey v. Kinwood Realty Corp., 277 App. Div. 682; cf. Federal Waste Paper Corp. v. Garment Center Capitol, 268 App. Div. 230, affd. 294 N.Y. 714.)
The testimony of the plaintiff concerning his conversation with the defendant, as to why the latter took the elevator and why he failed to leave someone at the door, or put up a sign, was sufficient to raise issues of fact as to whether the defendant did operate the elevator and whether, in so doing, he exercised reasonable care. Further, the question of contributory negligence was for the jury, in view of the peculiar physical construction of the elevator, which, under the circumstances disclosed in the record, required one to enter the elevator in order to turn on the light switch. The failure of the trial court to allow this case to go to the jury was error and I, therefore, vote to reverse and remand for a new trial.