Negri v. Stop & Shop, Inc.

107 A.D.2d 738, 484 N.Y.S.2d 100, 1985 N.Y. App. Div. LEXIS 42643

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1985
• Status: Published

Opinion

— In a negligence action to recover damages for personal injuries, etc., defendant appeals from an amended judgment of the Supreme Court, Rockland County (Meehan, J., at trial on liability; Ruskin, J., at trial on damages), dated January 16,1984, which, after a bifurcated jury trial, is in favor of plaintiff Paquita Negri in the principal amount of $97,750 and of plaintiff Anthony Negri in the principal amount of $8,300.

Amended judgment reversed, on the law, without costs or disbursements, and complaint dismissed.

Defendant’s motions to dismiss plaintiffs’ complaint at the close of plaintiffs’ case and after the defense rested (CPLR 4401) were improperly denied. Plaintiffs’ theory of recovery was that Paquita Negri slipped and fell on a jar of baby food which had broken and splattered in the aisle of defendant supermarket. However, the testimony established only that baby food was found on the floor near Mrs. Negri after the accident. No proof was presented to establish how long the jar had been broken and resting on the floor, nor that any employee of defendant was aware of its presence. The evidence was therefore insufficient to raise a question of fact for the jury to consider on the issue of defendant’s actual or constructive notice of a defective condition, or the creation thereof. Plaintiffs’ complaint must therefore be dismissed (see Stevens v Loblaws Market, 27 AD2d 975; Eddy v Tops Friendly Markets, 91 AD2d 1203, affd 59 NY2d 692 on mem at App Div). Lazer, J. P., Bracken, Rubin and Eiber, JJ., concur.