Dorfman v. Aronowitz

• Court: United States State Supreme Court (New York)
• Writing for the Court: MATTHEW M. LEVY
• Citation: 30 Misc.2d 871,219 N.Y.S.2d 294
• Parties: Esther DORFMAN, Plaintiff, v. Lillian ARONOWITZ and Sam Aronowitz, Defendants.
• Decision Date: 27 June 1961

Page 294

219 N.Y.S.2d 294 30 Misc.2d 871 Esther DORFMAN, Plaintiff,
v.
Lillian ARONOWITZ and Sam Aronowitz, Defendants. Supreme Court, Special and Trial Term, New York County, Part VIII. June 27, 1961.

Page 295

Rothbard & Schulman, Brooklyn (Louis Rothbard and Ralph Stout, Brooklyn, of counsel), for plaintiff.

Evans, Orr, Gourlay & Pacelli, New York City, (Walter G. Evans, and William F. Laffan, Jr., New York City, of counsel), for defendants.

MATTHEW M. LEVY, Justice.

This is an action for damages for personal injuries. The cause was tried without a jury. Findings of facts and conclusions of law were duly waived. It was stipulated that, if the plaintiff were entitled to recover, her damages amounted to $6,000. The only issue tried before me, therefore, was the liability of the defendants for the accident involved in this suit--that is, the negligence of the defendants on the one hand and the contributory negligence of the plaintiff on the other.

The plaintiff is the mother of the defendant Lillian Aronowitz and was the mother-in-law of the defendant Sam Aronowitz [30 Misc.2d 872] (who died during the trial of this action). It appears that the defendants had brought the plaintiff to their home on October 24, 1957. She was then 80 years of age and was to convalesce following her recent confinement in a hospital for about five months. This was the plaintiff's first visit to her daughter's home. The residence is a one-story and basement private dwelling. On the evening of the 26th and in the very early morning of the 27th of October, the defendants were away from their abode. On their return, they entered by way of the basement, and, as the weather was cold, they turned up the heat there, and left open the door leading from the basement to the living quarters so as to permit the heat to circulate upstairs where the bedrooms were located. Because of a pillar, the door when opened could not rest flat against the wall, but obstructed the hallway so that the electric switch there was obscured by the door and so that a space of only about 17 inches of the normal three feet of width of the hallway was available to a person walking through the hall. The defendants extinguished the basement light, went into the plaintiff's bedroom, bade her 'Goodnight', put out the lights in her bedroom and in the hallway, and retired.

Page 296

In order to reach the bathroom from her bedroom, the plaintiff had to walk along the hallway and pass this open door. She had walked along this hallway and had used the bathroom on other occasions without mishap; never before had the hallway door leading to the basement been left open. On the night in question, the plaintiff--spurred by old age or illness or routine or a combination of all--was awakened, and was impelled to leave her bedroom to go to the bathroom to urinate. She did not put on any lights. As she was walking to the bathroom, she came in contact with the open door and fell down the steps to the basement. She sues...