SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
February 25, 1969
HILDA V. PIKE ET AL., APPELLANTS,
ROBERT SILLINS ET AL., CO-PARTNERS DOING BUSINESS AS PRINCE GEORGE HOTEL ASSOCIATES, ET AL., RESPONDENTS. ROBERT SILLINS ET AL., CO-PARTNERS, DOING BUSINESS AS PRINCE GEORGE HOTEL ASSOCIATES, ET AL., THIRD-PARTY PLAINTIFFS, V. GEORGE LANE, DOING BUSINESS AS E. Z. CLEAN FLOOR CO., THIRD-PARTY DEFENDANT
Concur -- McNally, Steuer and Bastow, JJ.; Capozzoli, J. P., and Nunez, J., concur in the result.
Plaintiff's wife was injured when she fell on the lobby floor of premises controlled by respondents. There was proof that following the fall a skid mark was observed on the floor and flakes of wax adhered to plaintiff's shoe and stocking. A qualified expert in reply to a hypothetical question based on these facts expressed the opinion that successive layers of wax had been applied to the floor; that this was not in accord with proper custom and was an improper procedure. This distinguishes this case from Silva v. American Irving Sav. Bank (31 A.D.2d 620). Respondents submitted no proof. The trial court erred in dismissing the complaint. Factual issues were presented that should have been submitted to the jury. (Reisner v. New York Kosher Provisions, 25 A.D.2d 511; Garrison v. Lockheed Aircraft Service-New York, 24 A.D.2d 998.)
Judgment entered June 21, 1968, unanimously reversed on the law and a new trial ordered with costs to abide the event.
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