Felgenhauer v. Atlantic & Pacific Tea Co.

94 A.D.2d 737, 462 N.Y.S.2d 488, 1983 N.Y. App. Div. LEXIS 18184

Opinion

— In a negligence action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Dickinson, J.), entered July 14,1982, which was in favor of the defendant, upon a jury verdict. Judgment affirmed, with costs. The plaintiff claimed that he slipped and fell on a foreign substance on the floor of the defendant’s premises. On this appeal he asserts that the jury’s finding in favor of the defendant was against the weight of the evidence. We disagree. There was unsatisfactory proof as to the exact nature of the foreign substance, of the defendant’s knowledge, whether actual or constructive, of the existence of a dangerous condition, and of the creation by the defendant of such condition (see Mazzullo v Wieland, 9 AD2d 930; see, also, Sikora v Apex Beverage Corp., 282 App Div 193, affd 306 NY 917; Fazio v Stanley-Mark-Strand Corp., 264 App Div 921, affd 290 NY 547). Moreover, there was a conflict in the proof as to whether the foreign substance found on the plaintiff’s trousers and rubbers was what actually caused him to fall. We have considered the other argument advanced by the plaintiff and find it to be without merit. Gibbons, J. P., Thompson, Weinstein and Rubin, JJ., concur.