Nagengast v. Johnson

— In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Green, J.), entered August 12, 1987, which upon the granting of the motion by the defendant the Town of Wallkill to dismiss the amended complaint for failing to estabish a prima facie case at trial, dismissed the amended complaint against the defendant Town of Wallkill.

Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

There was sufficient evidence, with Commissioner Spratt’s testimony, to raise an issue of fact as to whether there was affirmative negligence on the part of the respondent to obviate the necessity of giving prior written notice. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.