Uy v. Shapmor, Inc.

• Decision Date: 28 January 1965
• Citation: 45 Misc.2d 543,257 N.Y.S.2d 208
• Parties: Milagrosa UY, Plaintiff-Respondent, v. SHAPMOR, INC., Defendant-Appellant, and Kirsch Beverages, Inc., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Term

Page 208

257 N.Y.S.2d 208

45 Misc.2d 543

Milagrosa UY, Plaintiff-Respondent, v. SHAPMOR, INC., Defendant-Appellant, and Kirsch Beverages Inc., Defendant-Respondent.

Supreme Court, Appellate Term, First Department.

Jan. 28, 1965.

Allen M. Taylor, New York City, Martin M. Baxter, New York City, of counsel, for appellant.

Arthur O. Klein, New York City, Nathan L. Levine, New York City, of counsel, for plaintiff-respondent.

Lynch, Smith & Kelly, New York City, by Emile Z. Berman and A. Harold Frost, New York City, of counsel (Leonard A. Sheft and David G. Trager, New York City, of counsel, for defendant-respondent.

Before GOLD, J. P., and CAPOZZOLI and HOFSTADTER, JJ.

PER CURIAM.

The submission of this case to the jury by the court on the theory of res ipsa loquitur as against the defendant-appellant was proper and the jury's verdict in favor of the plaintiff might well be 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 statement of the plaintiff, while being questioned by counsel for the co-defendant, now defendant-respondent, namely, '* * * I reported it to the manager who took my name and he said, 'The insurance man would call on me'' was highly prejudicial to the defendant-appellant and its motion for a mistrial should have been granted (Simpson v. Foundation, 201 N.Y. 479, 95 N.E. 10).

Were this an automobile accident case affirmance without re-trial would be warranted, because it is generally known by the public to-day that New York State has provided for compulsory liability insurance of automobiles. However, the plaintiff sustained her injuries while shopping in the store of the defendant-appellant and, under the circumstances, it was most improper for the jury to learn of the fact that this store was covered by insurance.

Judgment dismissing plaintiff's complaint against defendant, Kirsch Beverages, Inc., and dismissing the cross-complaint of defendant, Shapmor, Inc., against the defendant, Kirsch Beverages, Inc., affirmed without costs.

Judgment against defendant-appellant, Shapmor, Inc., reversed and a new trial ordered with $30 costs to appellant to abide the event.

GOLD, J. P., and CAPOZZOLI, J., concur.

HOFSTADTER, J., dissents in dissenting memorandum and votes to affirm.

HOFSTADTER, Justice (dissenting).

I dissent and vote the affirm. While plaintiff was standing in the cashier's checkout line in appellant's supermarket, her right leg was struck by flying glass from an exploded bottle of soda. No evidence was offered by either defendant. Following a fair charge, the jury returned a unanimous verdict for plaintiff against defendant Shapmor, Inc., the owner of the supermarket. My colleagues order a new trial, not on the merits but because of an inadvertent reference to insurance by plaintiff in answer to a question put by counsel for defendant Kirsch Beverages, Inc.

I cannot agree. The trial judge immediately...