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LIZZIE FLEISCHER v. NIEBERG MIDWOOD CHAPEL (09/29/69)

September 29, 1969

LIZZIE FLEISCHER, APPELLANT,
v.
NIEBERG MIDWOOD CHAPEL, INC., ET AL., RESPONDENTS



In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, dated January 13, 1969, in favor of defendants after a jury trial limited to the issues of liability, upon the trial court's setting aside of the jury's verdict for plaintiff and directing a verdict for defendants.

Brennan, Acting P. J., Hopkins, Benjamin, Munder and Kleinfield, JJ., concur.

Plaintiff sustained her injuries when she fell on a stairway in defendants' premises. The trial court held that plaintiff had failed to establish actionable negligence. In our opinion, that determination was correct. Affording plaintiff every favorable inference from the proof, and assuming that the staircase and particularly a railing thereon had been improperly constructed, as claimed by her expert (cf. Fortgang v. Chase Manhattan Bank, 23 N.Y.2d 895), we find no evidence whatever that the alleged defective condition was the proximate cause of the accident (cf. Martin v. Herzog, 228 N. Y. 164, 170).

Disposition

Judgment affirmed, with costs.

19690929

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