Marotta v. Montgomery Ward & Co.

Appellate Division of the Supreme Court of New York

Marotta v. Montgomery Ward & Co.

24 A.D.2d 914, 264 N.Y.S.2d 434, 1965 N.Y. App. Div. LEXIS 3008

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

DecidedNovember 18, 1965

StatusPublished

Cited by1 cases

This text of 24 A.D.2d 914 (Marotta v. Montgomery Ward & Co.) 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

Marotta v. Montgomery Ward & Co., 24 A.D.2d 914, 264 N.Y.S.2d 434, 1965 N.Y. App. Div. LEXIS 3008 (N.Y. Ct. App. 1965).

Pincite

Opinion

Reynolds, J.

Appeal from a judgment of the Supreme Court, Albany County, dismissing the complaint at the close of appellants’ case (CPLR, 4401). Appellants seek damages for personal injuries purportedly suffered by appellant Theresa Marotta when she was allegedly struck by a bag containing wet garbage which fell from a window on the top floor of respondent’s store in Menands, Hew York. It is evident from the record that very early in the trial the court below indicated that it did not think that appellants could avail themselves of the doctrine of res ipsa loquitur and that, therefore, it would favorably entertain a motion to dismiss. It also seems that knowledge of the court’s position caused appellants’ attorney to curtail his proof to the point that he did not even call Theresa Marotta to establish that it was the bag of garbage which struck her and caused her injuries. We think therefore, that in the interests of justice a new trial should be held at which appellants will have a full opportunity to develop their proof, including proof as to the extent of respondent’s control over that portion of the premises from which the bag allegedly dropped, prior to a determination of the applicability of the doctrine of res ipsa loquitur. Judgment reversed, on the law and the facts, and a new trial ordered, with costs to abide the event. Herlihy, J. P., Taylor, Aulisi and Hamm, JJ., concur.

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Reynolds, J.

Appeal from a judgment of the Supreme Court, Albany County, dismissing the complaint at the close of appellants’ case (CPLR, 4401). Appellants seek damages for personal injuries purportedly suffered by appellant Theresa Marotta when she was allegedly struck by a bag containing wet garbage which fell from a window on the top floor of respondent’s store in Menands, Hew York. It is evident from the record that very early in the trial the court below indicated that it did not think that appellants could avail themselves of the doctrine of res ipsa loquitur and that, therefore, it would favorably entertain a motion to dismiss. It also seems that knowledge of the court’s position caused appellants’ attorney to curtail his proof to the point that he did not even call Theresa Marotta to establish that it was the bag of garbage which struck her and caused her injuries. We think therefore, that in the interests of justice a new trial should be held at which appellants will have a full opportunity to develop their proof, including proof as to the extent of respondent’s control over that portion of the premises from which the bag allegedly dropped, prior to a determination of the applicability of the doctrine of res ipsa loquitur. Judgment reversed, on the law and the facts, and a new trial ordered, with costs to abide the event. Herlihy, J. P., Taylor, Aulisi and Hamm, JJ., concur.

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Bluebook (online)

24 A.D.2d 914, 264 N.Y.S.2d 434, 1965 N.Y. App. Div. LEXIS 3008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marotta-v-montgomery-ward-co-nyappdiv-1965.

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