Rocher v. New York City Transit Authority

11 Misc. 2d 951, 172 N.Y.S.2d 836, 1958 N.Y. Misc. LEXIS 4011

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 23, 1958
• Status: Published

Opinion

Per Curiam.

The passage of a 10-minute interval during which the alleged dangerous condition existed is not a sufficient time lapse within which to charge defendant, under all the circumstances here, with constructive notice.

If the condition had been created by the porter, despite the fact that he was not in defendant’s employ, the porter’s negligence in the execution of a nondelegable duty imposed on defendant as a carrier would be imputed to defendant and plaintiff would not be required to prove notice, actual or constructive.

The record, however, does not clearly indicate that the porter created the condition and. it was error therefore to have submitted the question of constructive notice to the jury considering the maximum time elapsed, the court having charged that defendant did not have actual notice.

There having been no notice to the defendant other than above indicated, the complaint should have been dismissed and the judgment based upon the verdict of the jury may not be permitted to stand.

The judgment should be reversed, with costs, and complaint dismissed, with costs.

Hboht, J. P., Aurelio and Tilzer, JJ., concur.

Judgment reversed, etc.