Miles v. R & M Appliance Sales, Inc.

Appellate Division of the Supreme Court of New York

Miles v. R & M Appliance Sales, Inc.

27 A.D.2d 857, 280 N.Y.S.2d 909, 1967 N.Y. App. Div. LEXIS 4556

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

DecidedMarch 27, 1967

StatusPublished

This text of 27 A.D.2d 857 (Miles v. R & M Appliance Sales, Inc.) 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

Miles v. R & M Appliance Sales, Inc., 27 A.D.2d 857, 280 N.Y.S.2d 909, 1967 N.Y. App. Div. LEXIS 4556 (N.Y. Ct. App. 1967).

Pincite

Opinion

Judgment of the Supreme Court, Westchester County, dated May 12, 1965, reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact have been considered. In our opinion, when the evidence adduced by plaintiff is considered in the aspect most favorable to her and she is given the benefit of every favorable inference which can reasonably be drawn from that evidence (Andersen v. Bee Line, 1 N Y [858]*8582d 169, 172), a prima facie ease of negligence was established. Ughetta, Rabin and' Benjamin, JJ., concur. Beldock, P. J., and Munder, J., dissent and vote to affirm the judgment, with the following memorandum: Entirely apart from the question of plaintiff’s credibility, there was no proof in this ease that either the defendant or the third-party defendant was in any way negligent. If reversal is based on the theory that the presence of the air conditioner in the yard warrants the inference that defendant or its agent must have redelivered it, it must be further assumed that when it was redelivered it was so placed by defendant as to create a trap. This is basing inference on inference. Plaintiff might have established a prima facie case by means of a deposition of defendant or its agent before trial, but she did not do so. In our opinion, plaintiff failed to make out a prima facie case of negligence on the part of defendant.

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Judgment of the Supreme Court, Westchester County, dated May 12, 1965, reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact have been considered. In our opinion, when the evidence adduced by plaintiff is considered in the aspect most favorable to her and she is given the benefit of every favorable inference which can reasonably be drawn from that evidence (Andersen v. Bee Line, 1 N Y [858]*8582d 169, 172), a prima facie ease of negligence was established. Ughetta, Rabin and' Benjamin, JJ., concur. Beldock, P. J., and Munder, J., dissent and vote to affirm the judgment, with the following memorandum: Entirely apart from the question of plaintiff’s credibility, there was no proof in this ease that either the defendant or the third-party defendant was in any way negligent. If reversal is based on the theory that the presence of the air conditioner in the yard warrants the inference that defendant or its agent must have redelivered it, it must be further assumed that when it was redelivered it was so placed by defendant as to create a trap. This is basing inference on inference. Plaintiff might have established a prima facie case by means of a deposition of defendant or its agent before trial, but she did not do so. In our opinion, plaintiff failed to make out a prima facie case of negligence on the part of defendant.

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Bluebook (online)

27 A.D.2d 857, 280 N.Y.S.2d 909, 1967 N.Y. App. Div. LEXIS 4556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miles-v-r-m-appliance-sales-inc-nyappdiv-1967.