Torregrossa v. Bohack Corp.

Decision Date18 May 1981
Citation439 N.Y.S.2d 55,81 A.D.2d 884
CourtNew York Supreme Court — Appellate Division
PartiesJean TORREGROSSA et al., Appellants-Respondents, v. The BOHACK CORP., Defendant third-party Plaintiff-Respondent-Appellant; Swift & Co., third-party Defendant-Respondent.

Suozzi, English, Cianciulli & Peirez, P.C., Mineola (Stephen C. Glasser, Joseph A. Suozzi and Charles J. McEvily, Mineola, of counsel), for appellants-respondents.

Shea & Gould, New York City (Raymond B. Harding and Ronald D. Lefton, New

York City, of counsel), for defendant-respondent-appellant.

Before HOPKINS, J. P., and TITONE, GIBBONS and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the cross appeals are from a judgment of the Supreme Court, Suffolk County, entered May 22, 1980, which, inter alia, is in favor of the defendant upon the trial court's dismissal of the complaint at the close of the plaintiffs' case, at a jury trial.

Judgment reversed, on the law, and new trial granted as to all parties and causes, with costs to abide the event.

In this "slip and fall" case, the question is whether the evidence presented, when viewed in a light most favorable to the plaintiffs, was sufficient to raise a question of fact for the jury on the issue of the defendant's constructive notice of the defective condition. Jean Torregrossa (hereafter plaintiff), while shopping in defendant's supermarket an hour and a half to two hours after it opened, slipped and fell on a piece of glass lying on the floor of an aisle. The piece of glass was clean and appeared to be part of the lip of a jar. The aisle was clear and clean, having been swept the night before and washed four days earlier. Plaintiff fell in the baby food section of the aisle, which had been stocked by the third-party defendant the previous day. Defendant's stockboy was working at the corner of that aisle but was not stocking the shelves where the incident occurred. The manager of defendant's store received a complaint about glass on the floor the same morning plaintiff fell.

It is well settled that if a plaintiff fails to present evidence upon which a jury could reasonably infer that the defendant had actual or constructive notice of a defective condition, a dismissal of the complaint at the close of the plaintiff's case is required (see Bender v. Dan's Supreme Supermarkets, 71 A.D.2d 636, 418 N.Y.S.2d 476; Stevens v. Loblaws Market, 27 A.D.2d 975, 278...

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9 cases
  • Kniffin v. Thruway Food Markets, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • November 27, 1991
    ...(Newman v. Great Atl. & Pac. Tea Co., 100 A.D.2d 538, 473 N.Y.S.2d 231, appeal dismissed 62 N.Y.2d 942, quoting Torregrossa v. Bohack Corp., 81 A.D.2d 884, 885, 439 N.Y.S.2d 55). It has long been settled that photographs may be used to prove constructive notice of an alleged defect shown in......
  • Negri v. Stop and Shop, Inc.
    • United States
    • New York Court of Appeals Court of Appeals
    • May 9, 1985
    ...employees to discover and remedy the condition. (Cf. Cameron v. Bohack Co., 27 A.D.2d 362, 365, 280 N.Y.S.2d 483; Torregrossa v. Bohack Corp., 81 A.D.2d 884, 439 N.Y.S.2d 55, Wheeler v. Deutch, 242 App.Div. 641, 272 N.Y.S. 161.) Plaintiffs having made out a prima facie case, it was error to......
  • Newman v. Great Atlantic & Pacific Tea Co.
    • United States
    • New York Supreme Court — Appellate Division
    • March 12, 1984
    ...a question of fact for the jury on the issue of defendant's constructive notice of the defective condition (Torregrossa v. Bohack Corp., 81 A.D.2d 884, 885, 439 N.Y.S.2d 55). While shopping in defendant's supermarket, plaintiff slipped and fell in a puddle of dirty water. The puddle emanate......
  • Meyers v. Fifth Ave. Bldg. Associates
    • United States
    • New York Supreme Court — Appellate Division
    • November 22, 1982
    ...The law is well settled in New York that the defendant must have had such notice to be held liable (see Torregrossa v. Bohack Corp., 81 A.D.2d 884, 885, 439 N.Y.S.2d 55; Bender v. Dan's Supreme Supermarkets, 71 A.D.2d 636, 418 N.Y.S.2d 476; Sikora v. Apex Beverage Corp., 282 App.Div. 193, 1......
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