Shapiro v. Hotel Corp. of America

Appellate Division of the Supreme Court of New York

Shapiro v. Hotel Corp. of America

25 A.D.2d 828, 269 N.Y.S.2d 660, 1966 N.Y. App. Div. LEXIS 4292

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

DecidedMay 10, 1966

StatusPublished

Cited by2 cases

This text of 25 A.D.2d 828 (Shapiro v. Hotel Corp. of America) 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.

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Shapiro v. Hotel Corp. of America, 25 A.D.2d 828, 269 N.Y.S.2d 660, 1966 N.Y. App. Div. LEXIS 4292 (N.Y. Ct. App. 1966).

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Opinion

Judgment in favor of plaintiff in the sum of $26,859.50, unanimously reversed, on the law and on the facts, and a new trial ordered, with $50 costs and disbursements to abide the event. The finding of constructive notice implicit in the verdict is against the weight of the evidence. Plaintiff testified that she first saw the separation in the carpet after she fell. The opinion of plaintiff’s expert to the effect that the separation existed prior to the occurrence was based solely on photographs taken nine months after the event. There is no other testimony as to the duration of the condition of the carpet prior to the accident. The expert’s opinion is too speculative. (Cf. Marcus v. Manhattan Beach Parks Corp., 246 App. Div. 331, 332, where there was proof other than the photographs; see, also, Goodman v. Caledonian Ins. Co. of Scotland, 222 N. Y. 121, 125-126; McDermot v. City of New York, 287 F. 2d 49, 50; Fireman’s Ins. Co. of Baltimore v. Mohlman Co., 91 F. 85, 87; Valle v. City of New York, 22 Misc 2d 985; Gibbons v. City of New York, 200 Misc. 699; Rotker v. City of New York, 124 N. Y. S. 2d 231, affd. N. Y. L. J., Jan. 21, 1955, p. 6, col. 4.)

Concur — Breitel, J. P., Rabin, McNally and Stevens, JJ.

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Judgment in favor of plaintiff in the sum of $26,859.50, unanimously reversed, on the law and on the facts, and a new trial ordered, with $50 costs and disbursements to abide the event. The finding of constructive notice implicit in the verdict is against the weight of the evidence. Plaintiff testified that she first saw the separation in the carpet after she fell. The opinion of plaintiff’s expert to the effect that the separation existed prior to the occurrence was based solely on photographs taken nine months after the event. There is no other testimony as to the duration of the condition of the carpet prior to the accident. The expert’s opinion is too speculative. (Cf. Marcus v. Manhattan Beach Parks Corp., 246 App. Div. 331, 332, where there was proof other than the photographs; see, also, Goodman v. Caledonian Ins. Co. of Scotland, 222 N. Y. 121, 125-126; McDermot v. City of New York, 287 F. 2d 49, 50; Fireman’s Ins. Co. of Baltimore v. Mohlman Co., 91 F. 85, 87; Valle v. City of New York, 22 Misc 2d 985; Gibbons v. City of New York, 200 Misc. 699; Rotker v. City of New York, 124 N. Y. S. 2d 231, affd. N. Y. L. J., Jan. 21, 1955, p. 6, col. 4.)

Concur — Breitel, J. P., Rabin, McNally and Stevens, JJ.

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25 A.D.2d 828, 269 N.Y.S.2d 660, 1966 N.Y. App. Div. LEXIS 4292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shapiro-v-hotel-corp-of-america-nyappdiv-1966.

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