Hyams v. King Kullen Store
| Decision Date | 22 June 1962 |
| Citation | 230 N.Y.S.2d 962 |
| Parties | Lorraine HYAMS and Richard Hyams, Respondents, v. KING KULLEN STORE, Pepsi-Cola, Inc., and United Beverage, Defendants; King Kullen Grocery, Inc., Pepsi Cola Metropolitan Bottling Co., Inc., Appellants. |
| Court | New York Supreme Court — Appellate Term |
John A. Anderson, Rockville Centre, for appellants.
Santangelo, Morrison & Martorano, Anthony R. Martorano, New York City, for respondents.
Before DI GIOVANNA, BENJAMIN and GULOTTA, JJ.
MEMORANDUM BY THE COURT.
Judgment in favor of plaintiffs against defendant King Kullen Grocery Company, Inc. affirmed, without costs. Judgment in favor of plaintiffs against defendant Pepsi-Cola Metropolitan Bottling Company, Inc. reversed without costs and complaint dismissed. Plaintiffs failed to establish any negligence on the part of defendant Pepsi-Cola Metropolitan Bottling Company, Inc. The judgment against defendant King Kullen Grocery Company, Inc., is affirmed on the authority of Day v. Grand Union Co., 280 App.Div. 253, 113 N.Y.S.2d 436, affd. 304 N.Y. 821, 109 N.E.2d 609. The Appellate Division there held that where a customer is injured 'by the unexpected dangerous behavior of the article which until that instant had been in the exclusive possession of the storekeeper, enough has been shown * * * to make admissible an inference of negligence without proof of active negligence.'
GULOTTA, J., concurs in the reversal as to defendant Pepsi-Cola but dissents and votes to reverse and dismiss the complaint as to defendant King Kullen Grocery Company, Inc., with the following memorandum:
In my opinion plaintiffs failed to make out a prima facie case against the owner of the supermarket. The mere explosion of a soda bottle while on the shelf of a storekeeper does not, without any other proof, warrant an inference of negligence. (See Curley v. Ruppert, 272 App.Div. 441, 71 N.Y.S.2d 578.) I think Day v. Grand Union Co. (supra) is distinguishable. In that case there was the additional circumstance, not here present, that the bottle was exposed to the sun on a hot day and that it felt warm when picked up by the customer who was injured. The Court of Appeals, in affirming the determination of the Appellate Division, merely held that a prima facie case in negligence had been made out and that 'We pass upon no other question.' By such affirmance the Court of Appeals did not necessarily adopt the reasoning of the Appellate Division. (See...
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...sustained. (Day v. Grand Union Co., 280 App.Div. 253, 113 N.Y.S.2d 436, aff'd 304 N.Y. 821, 109 N.E.2d 609; Hyams v. King Kullen Grocery Company, Inc., et al., Sup., 230 N.Y.S.2d 962, rev'g in part 32 Misc.2d 920, 223 N.Y.S.2d 263, aff'd 20 App.Div.2d 657, 246 N.Y.S.2d 575.) However, the st......
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Lindenauer v. State, 52066
... ... from a distributor as part of a 10-case shipment and kept in the store's basement until placed on the display shelf as normal restocking ... Ruppert, 272 App.Div. 441, 71 N.Y.S.2d 578 and Hyams v. King Kullen Grocery Co., 32 Misc.2d 920, 223 N.Y.S.2d 263, revd. in ... ...
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