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JONES v. PRESBYT. HOSP.

3 A.D.3d 225 (2004)

771 N.Y.S.2d 109

ROBERT JONES, Appellant, v. PRESBYTERIAN HOSPITAL IN THE CITY OF NEW YORK, Defendant, and TRUSTEES OF COLUMBIA UNIVERSITY, Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

January 22, 2004.

Attorney(s) appearing for the Case

Cannon & Acosta, LLP (Sharon Staudigel of counsel), for appellant.

Rivkin Radler LLP (Cheryl F. Korman, Evan H. Krinick and Christopher J. Schulte of counsel), for respondent.

BUCKLEY, P.J., ANDRIAS and LERNER, JJ., concur with MARLOW, J.; SAXE, J., dissents in a separate opinion.

OPINION OF THE COURT

MARLOW, J.

In this personal injury action, plaintiff allegedly fell while descending two steps in an auditorium owned and operated by defendants. The two stairs led from the last row of seats, where plaintiff had been sitting, down to a central aisle. Plaintiff had been to the auditorium somewhere between 5 and 10 times prior to the accident. Although plaintiff testified that he cannot recall exactly where he sat in the auditorium on...

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