Delgado v. Pasternak

• Decision Date: 09 November 1964
• Citation: 254 N.Y.S.2d 131,22 A.D.2d 799
• Court: New York Supreme Court — Appellate Division
• Parties: Julia DELGADO, Appellant, and Felix Delgado, Plaintiff, v. Stefan PASTERNAK, Respondent.

Page 131

254 N.Y.S.2d 131

22 A.D.2d 799

Julia DELGADO, Appellant, and Felix Delgado, Plaintiff, v.Stefan PASTERNAK, Respondent.

Supreme Court, Appellate Division, Second Department.

Nov. 9, 1964.

Delukey & Shapiro, Brooklyn, for appellant; Stanley Shapiro, Brooklyn, of counsel.

Bernard Helfenstein, Brooklyn, for respondent; Michael B. Grossman, Brooklyn, of counsel.

Before BELDOCK, P. J., and KLEINFELD, CHRIST, HILL and RABIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injury allegedly sustained by the plaintiffJulia Delgado, said plaintiff appeals from a judgment of the Supreme Court, Kings County, entered December 21, 1962 after trial, upon a jury's verdict in favor of the defendant.The action by the plaintiff's husband, Felix Delgado, was discontinued, with prejudice, during trial.

Judgment reversed on the law, and a new trial granted, with costs to plaintiff to abide the event.No questions of fact have been considered.

It is plaintiff's claim that about nine-thirty or ten o'clock on the night of September 12, 1958, she was caused to trip and fall on a stairway in a rooming house owned and maintained by the defendant.

At the trial defendant sought to establish that plaintiff's injuries, which included a broken arm, did not result from a fall on the stairs but were sustained when she was assaulted by her husband, from whom she later separated.Defendant produced a witness who said that between 5:00 and 6:00 p. m. he heard considerable noise and screaming coming from the furnished room occupied by plaintiff and her husband.The witness did...