Opinion
December 13, 1973
Appeal from an order of the Supreme Court at Special Term, entered February 27, 1973 in Delaware County, which denied defendants' motion for summary judgment. The instant litigation is a wrongful death action which arose as a result of injuries sustained by the decedent when she fell from her bed in the defendant hospital, allegedly due to the defendants' negligent failure to provide a railing or other protective device on her bed. Special Term denied summary judgment on the ground that triable issues of fact exist and we agree. Mossman v. Albany Med. Center Hosp. ( 34 A.D.2d 263) does not, as defendants assert, mandate dismissal. In Mossman we upheld a judgment which dismissed the complaint after a full trial during which plaintiff did not establish either negligence or malpractice. Such is not the posture of the present case. Order affirmed, with costs. Staley, Jr., J.P., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.