Majeski v. Accurate Const. Co.

• Decision Date: 12 June 1961
• Parties: Steven W. MAJESKI, Appellant, v. ACCURATE CONSTRUCTION COMPANY, Respondent, and Reliable Construction Company, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 724

216 N.Y.S.2d 724

13 A.D.2d 986

Steven W. MAJESKI, Appellant, v. ACCURATE CONSTRUCTION COMPANY, Respondent, and Reliable Construction Company, Defendant.

Supreme Court, Appellate Division, Second Department.

June 12, 1961.

Rothbard, McAuley & Schulman, Brooklyn, Ralph Stout, Brooklyn, of counsel, for appellant.

Rudser & Fitzmaurice, New York City, Wm. F. McNulty, New York City, of counsel, for respondent.

Before BELDOCK, Acting P. J., and KLEINFELD, CHRIST, PETTE, and UGHETTA, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, dated December 9, 1959, as dismissed his complaint against defendant Accurate Construction Company, on the basis of the opening statement made by plaintiff's counsel upon a jury trial.

Judgment insofar as appealed from, reversed, with costs, action severed as to said defendant Accurate Construction Company, and new trial ordered as against it.

In our opinion, counsel's opening statement, read in the light of the issues raised by the pleadings (including plaintiff's bill of particulars), raised triable questions of fact as to plaintiff's freedom from contributory negligence and as to whether the said defendant was guilty of actionable negligence.

KLEINFELD, CHRIST and PETTE, JJ., concur.

BELDOCK, Acting P. J., and UGHETTA, J., dissent and vote to affirm.