Opinion
November 3, 1966
Judgment dismissing the complaint for failure to establish a prima facie case at the close of plaintiff's case in a personal injuries negligence action unanimously reversed, on the law, and a new trial ordered on the issue of liability, with $50 costs and disbursements to abide the event. Plaintiff-appellant, a 67-year-old housewife, was injured when she fell down the stairway of a two-story, two-family dwelling house. She claims that her fall was caused by a defective stair tread and that her landlord, defendant-respondent, had notice of this condition. The testimony of plaintiff and her witnesses as well as photographs of the stair tread which were introduced at trial, are sufficient to raise a question for the jury as to whether the defect in the stair tread was sufficiently dangerous to impose liability upon the landlord ( Nadel v. Fichten, 34 App. Div. 188 [BARTLETT, J.]; Anno; Injury to Tenants — Stairways, 25 ALR 2d 364, 405-418). Furthermore, plaintiff's knowledge of the defect and her attempts to repair the condition do not necessarily defeat her right to recovery in this action, and a jury could find that she exercised reasonable care in view of the known circumstances (see Perrone v. Berzon, 258 App. Div. 916; 34 N.Y. Jur., Landlord and Tenants, § 465).
Concur — Botein, P.J., Breitel, Stevens and Capozzoli, JJ.