Lederer v. Samuel Broadway Food Corp.

Appellate Division of the Supreme Court of New York

Lederer v. Samuel Broadway Food Corp.

33 A.D.2d 553, 304 N.Y.S.2d 611, 1969 N.Y. App. Div. LEXIS 2968

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 28, 1969

StatusPublished

Cited by3 cases

This text of 33 A.D.2d 553 (Lederer v. Samuel Broadway Food Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lederer v. Samuel Broadway Food Corp., 33 A.D.2d 553, 304 N.Y.S.2d 611, 1969 N.Y. App. Div. LEXIS 2968 (N.Y. Ct. App. 1969).

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Opinion

Judgment entered February 4, 1969 unanimously reversed on the law and a new trial ordered, with costs to abide the event. In this personal injury negligence action, the Trial Justice instructed the jury that the defendant could not be held liable unless it had notice of the presence of the carton allegedly causing plaintiff’s fall. The jury must predicate its verdict on the law as enunciated in the charge (see Employers’ Liab. Assur. Corp. v. Post & McCord, 286 N. Y. 254, 264; Monahan v. City of New York, 31 A D 2d 933). Plaintiff’s request to charge on the theory of creation of dangerous operating procedures, deliveries, etc., which would not require the elements of notice or time to remove the carton, was refused by the court. The record is barren of any evidence to show that defendant had actual or constructive notice of the presence of the carton and sufficient time to remedy the condition. Plaintiff testified that he had traversed the area where he fell immediately prior to the accident at which time the carton was not there. Under plaintiff’s theory of the creation of a dangerous condition notice may be either unnecessary.or imputed. (See cases in 62 ALR 2d 31, 124, 125; Bogart v. Woolworth Co., 31 A D 2d 685.) Concur — • Stevens, P. J., Tilzer, Markewich, Nunez and Bastow, JJ.

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Judgment entered February 4, 1969 unanimously reversed on the law and a new trial ordered, with costs to abide the event. In this personal injury negligence action, the Trial Justice instructed the jury that the defendant could not be held liable unless it had notice of the presence of the carton allegedly causing plaintiff’s fall. The jury must predicate its verdict on the law as enunciated in the charge (see Employers’ Liab. Assur. Corp. v. Post & McCord, 286 N. Y. 254, 264; Monahan v. City of New York, 31 A D 2d 933). Plaintiff’s request to charge on the theory of creation of dangerous operating procedures, deliveries, etc., which would not require the elements of notice or time to remove the carton, was refused by the court. The record is barren of any evidence to show that defendant had actual or constructive notice of the presence of the carton and sufficient time to remedy the condition. Plaintiff testified that he had traversed the area where he fell immediately prior to the accident at which time the carton was not there. Under plaintiff’s theory of the creation of a dangerous condition notice may be either unnecessary.or imputed. (See cases in 62 ALR 2d 31, 124, 125; Bogart v. Woolworth Co., 31 A D 2d 685.) Concur — • Stevens, P. J., Tilzer, Markewich, Nunez and Bastow, JJ.

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Bluebook (online)

33 A.D.2d 553, 304 N.Y.S.2d 611, 1969 N.Y. App. Div. LEXIS 2968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lederer-v-samuel-broadway-food-corp-nyappdiv-1969.

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