Frank v. Howard Cooperative Corp. , 47 A.D.2d 920 ( 1975 )

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered April 20, 1973, (1) in favor of defendant Anker Management Corp. upon the trial court’s dismissal of the complaint as to said defendant at the close of plaintiffs’ case and (2) in favor of defendant Howard Cooperative Corp. upon the trial court’s dismissal of the complaint as to said defendant at the close of the entire case. Appeal insofar as it is with respect to defendant Anker dismissed, without costs. Judgment, insofar as it is with respect to defendant Howard, reversed, on the law, action severed as to said defendant and new trial granted, with costs to abide the event. This appeal did not raise questions of fact and none were considered. Since plaintiffs consented to the motion of defendant Anker to dismiss the complaint as to it, they are not aggrieved by that dismissal (CPLR 5511). The evidence adduced at trial established that the plaintiff husband, who resided in defendant Howard’s building, fell and was injured as the result of stumbling over a clump of grass growing between the flags (squares) of the concrete walkway leading to the apartment building. It was further established that he had known of the grassy condition for at least four months prior to the incident in question. The Trial Justice dismissed the complaint against defendant Howard on the ground that the plaintiff husband was guilty of contributory negligence as a matter of law because of his previous knowledge of the grassy condition. Under all the circumstances of this case, the evidence presented a question of fact as to whether he was guilty of contributory negligence. The trial court, therefore, was in error in dismissing the complaint as a matter of law (cf. Palmer v Bearing, 93 NY 7, 11; Sotomayor v Manell Realty Corp., 42 AD2d 597; Cesario v Chiapparine, 21 AD2d 272, 275). Martuscello, Acting P. J., Christ, Munder and Shapiro, JJ., concur.