McArdle v. M & M Farms of New City, Inc.

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Rockland County (Skahen, J.), entered April 29, 1982, which is in favor of defendant, upon the trial court’s dismissal of the action at the close of the plaintiff’s case, at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. Upon a defendant’s motion to dismiss at the close of the plaintiff’s case, the plaintiff is entitled to the most favorable inferences which may be drawn from the evidence (see 8 Carmody-Wait 2d, NY Frac, § 59:17). Applying this rule to the evidence herein, and taking particular note of the written statement made by defendant’s manager five days after the accident, we hold that plaintiff established a prima facie case on the issue of defendant’s awareness of the condition that caused plaintiff to fall (see Kelsey v Port Auth. of N. Y. & N. J., 52 AD2d 801; Gramm v State of New York, 28 AD2d 787, affd 21 NY2d 1025). Damiani, J. P., Weinstein, Gulotta and O’Connor, JJ., concur.