45 A.D.2d 673 | N.Y. App. Div. | 1974
Judgment, Supreme Court, Bronx County, entered July 2, 1973, affirmed, without costs and without disbursements. The trial court dismissed the complaint at the end of plaintiff-appellant’s case, and properly so, for there was complete absence of proof of freedom from contributory negligence on plaintiff’s part. Quite to the contrary, the evidence, by plaintiff herself, was to the effect that, knowing that water was flowing into her kitchen from outside, she chose to put herself into a dangerous position by negotiating a slippery floor and then climbing a ladder to retrieve food from a kitchen cabinet. She fell from the ladder. The situation is clearly distinguishable from that found in Cook v. Rezende (32 N Y 2d 596), wherein the flow of water, caused by the landlord, was in a public place necessarily frequented by tenants. The hearsay statement as to the cause of the flood was properly excluded. The superintendent’s statement in her deposition as to what her husband told her about his turning the» wrong water valve is clearly hearsay, as was her alleged statement to plaintiff that she herself had done so. Nor actually was any connection established between whatever either the superintendent or her husband had done and plaintiff’s later fall off a ladder which was standing in the puddle of water. Too much of plaintiff’s case depended on sheer speculation for it