Goldstein v. C. W. Post Center of Long Island University , 504 N.Y.S.2d 734 ( 1986 )

— In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Levitt, J.), entered July 11, 1984, which dismissed the complaint during the course of a jury trial.

Judgment reversed, on the law, and new trial granted, with costs to abide the event.

On December 13, 1977, the plaintiff Marilyn Goldstein, a student at C. W. Post Center who was 50 years old at the time of the trial, fell on a wet, muddy staircase at the university. It had been raining most of the day. The trial court refused to permit proof of prior accidents on the staircase occasioned by its slippery nature. Specifically, the plaintiffs were prevented from presenting the testimony of three witnesses who had previously slipped on the same stairs, an expert as to the dangerousness of the marble composition and configuration of the stairs, particularly when wet, and a file showing that the defendants had notice of a prior accident on the same stairs. The evidence was rejected on the basis that the plaintiffs failed to show that the conditions were "substantially” the same at the time of the prior accidents. The court primarily relied upon Vega v Jacobs (84 AD2d 813). Vega is inapposite, as the conditions of city "pavement”, with daily changing weather, pothole and skyline configurations, cannot be considered substantially similar, without testimony to that effect. This case, however, involves an indoor marble staircase. The fact that the prior accidents may have occurred on dry slippery marble rather than wet slippery marble favors the admissibility of such evidence. If the defendants had notice that the stairs were slippery when dry, and therefore had an obligation to remedy that dangerous condition, it follows that they had a higher duty on rainy days when the stairs, as the plaintiffs’ expert would have testified, would be more slippery if wet.

The court should have permitted evidence of such prior accidents which, when coupled with proof of rain prior to the accident, and viewing the evidence in a light most favorable to the plaintiffs, could have constituted notice of a dangerous condition, necessitating corrective action by the defendants (see, Pignatelli v Gimbel Bros., 285 App Div 625; affd 309 NY 901; Dolan v H. C. Bohack, Inc., 35 AD2d 672; Katz v Wanamaker Philadelphia, 381 PA 477, 112 A2d 65).

Moreover, the court acted inappropriately in dismissing the action before the plaintiffs rested. Orderly procedure required that the plaintiffs be permitted to complete their case. Even in a case where it seems that the plaintiffs’ ultimate success in the action would be improbable, "the dismissal of the complaint before plaintiff[s] had concluded [their] case [would be] unduly precipitate” (Budner v Giunta, 16 AD2d 780, 781; Cetta v City of New York, 46 AD2d 762). We therefore, reverse and grant the plaintiffs a new trial. Lazer, J. P., Gibbons and Eiber, JJ., concur.