Labetti v. Fanley Associates Inc.

Judgment unanimously reversed, on the law, and on the facts, and a new trial ordered, with $50 costs and disbursements to abide the event. In this personal injury action it is alleged the female plaintiff was caused to fall down a stairway of a multiple dwelling because of foreign matter on one of the steps. The court’s charge enabled the jury to decide the issue of constructive notice to the defendant solely on the failure of the witness Carieri to observe the foreign matter shortly before the occurrence. The ultimate factual issue is whether the foreign matter was present during the period the plaintiff alleges; that the said witness did not see the condition is a relevant consideration but not conclusive on the issue of constructive notice. The said charge constituted prejudicial error. The court’s refusal of plaintiffs’ request to charge the provisions of subdivisions 1 and 2 of section 80 of the Multiple Dwelling Law, pertaining to the duty of the owner of a multiple dwelling to keep the hallways clean, was also prejudicial error. (Taggart v. Vogel, 3 N Y 2d 58, 60; Vallina v. Wright & Kremers, 7 A D 2d 101, 109.) Moreover, the exclusion of evidence as to the extent of artificial lights at or near the site of the occurrence also was erroneous. Plaintiffs do not ground negligence on the inadequacy of the lighting. Nevertheless, it is the burden of the plaintiffs to establish freedom from contributory negligence on which issue the extent of light and the visual capacity of the female plaintiff was relevant. An appropriate charge would limit evidence of the lighting to the issue of contributory negligence. (Nappi V. Falcon Truck Renting Corp., 286 App. Div. 123, 127.) Concur — Botein, P. J., Stevens, Tilzer and McNally, JJ.