Fleming v. Arr-em Plastering Corp. 40 A.D.2d 610

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered October 18, 1971 in favor of defendant, upon the trial court’s dismissal of the complaint at the end of plaintiff’s case. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The appeal did not present questions of fact. In our opinion, it was error to dismiss the complaint at the close of plaintiff’s proof. Sufficient evidence had been received to sustain findings that plaintiff’s decedent had been injured by defendant’s employees in the course of their employment and that plaintiff’s decedent had not been contributorily negligent (cf. O’Rourke v. Waite Co., 125 App. Div. 825). Rabin, P. J., Hopkins, Munder, Latham and Shapiro, JJ., concur.