Brutman v. Lane's Dept. Store
| Decision Date | 12 June 1967 |
| Citation | 281 N.Y.S.2d 123,28 A.D.2d 690 |
| Parties | George BRUTMAN et al., Respondents, v. LANE'S DEPARTMENT STORE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before UGHETTA, Acting P.J., and CHRIST, BRENNAN, HOPKINS and MUNDER, JJ.
MEMORANDUM BY THE COURT.
Judgment of the Supreme Court, Queens County, dated April 5, 1966, reversed, on the law and the facts, and in the interest of justice, and new trial granted, with costs to abide the event.
Respondents have on this appeal disclaimed invoking the doctrine of res ipsa loquitur and have asserted as they did on the trial, that the facts proved warranted a finding of neglect in the maintenance of the door through which the plaintiff wife was departing. An essential ingredient of such negligence is timely notice. The proof as to notice was insufficient (Golden v. Horn & Hardart Co., Inc., 244 App.Div. 92, 278 N.Y.S. 385; affd. 270 N.Y. 544, 200 N.E. 309). There is no proof, independent of the statement of the unidentified woman to the unidentified man, whose status was never shown to be such as would bind defendant, of sufficient notice (cf. Bransfield v. Grand Union Co., 24 A.D.2d 586, 261 N.Y.S.2d 1006; affd. 17 N.Y.2d 474, 266 N.Y.S.2d 981, 214 N.E.2d 161).
In any event, we would reverse because of the prejudicial conduct of the trial court.
In the interests of justice, however, a new trial should be granted.
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