Rodriguez v. E. Burger

¶1In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered May 1,1973, 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 reversed, on the law, and new trial granted, with costs to abide the event. No fact questions have been raised or considered on this appeal. It was error for the trial court to exclude the testimony of Mr. Perez, the original lessee of the store, as to the condition of the basement a short time after the occurrence of the accident (see, e.g., Gray v Siegel-Cooper Co., 187 NY 376, 381-382; Richardson, Evidence [Prince, 10th ed], § 193). Gulotta, P. J., Rabin, Latham and Shapiro, JJ., concur; Martuscello, J., dissents and votes to affirm the judgment.