Rivera v. East Madison Street, Inc. , 37 A.D.2d 809 ( 1971 )

Interlocutory judgment, Supreme Court, New York County, entered on March 18, 1971, in favor of the plaintiff, unanimously reversed, on the law and the facts, and vacated, without costs and without disbursements, and a new trial directed. This negligence action was tried by a jury on the issue of liability. The plaintiff alleged personal injuries as a result of falling down a flight of stairs due to a defective step. Constructive notice was alleged in the bill of particulars, and when one of the plaintiff’s witnesses, Rafael Torres, testified to what amounted to actual notice, the court properly directed the jury to disregard it. During their deliberation, the jury requested a reading of this excluded testimony. The court then instructed them that this portion of Torres’ testimony had been excluded and they should only consider constructive notice. The foreman then requested that the admissible parts of Torres’ testimony be read because it was “ fuzzy ” in their memories. At this point, and unexplained in the record, only the testimony that had been excluded was read to the jury. This was clearly prejudicial to the defendant and of such a nature as to mandate a new trial. Concur — Capozzoli, J. P., McGivern, Kupferman, Murphy and Steuer, JJ.