Summary
holding complaint should have been dismissed when only evidence of notice was that defendant's manager learned of a slippery condition following plaintiff's fall
Summary of this case from Haskin v. United States, Andifred Realty Corp.Opinion
Argued January 3, 1991
Decided February 7, 1991
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, George F. Francis, J.
Eugene M. Fahey and Richard L. Woll for appellant.
Philip B. Abramowitz, C. Donald O'Connor and Amy C. Klein for respondents.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.
In this negligence action for a slip and fall in defendant's store, there was no evidence that defendant had notice of any slippery condition prior to plaintiff's fall; the testimony at most showed that defendant's manager learned of a slippery condition from the fall. In that the evidence was insufficient to establish the element of notice, the complaint should have been dismissed (Anderson v Klein's Foods, 73 N.Y.2d 835, 836, affg 139 A.D.2d 904).
The evidence offered by plaintiff but excluded by the trial court concerning dampness plaintiff discovered on her slacks some time after the fall would not have cured this deficiency. We thus have no occasion to review the Appellate Division's conclusion that the evidence was admissible as a "subsequent condition" to show that defendant's floor had been wet at the time of the fall (see, Richardson, Evidence § 193 [Prince 10th ed]).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order reversed, etc.