Dowling v. F. W. Woolworth Co.

In a negligence action to recover damages for personal injuries sustained by plaintiff as the result of her fall on a piece of hamburger meat on the floor of defendant’s store where it maintained and operated a stand-up lunch counter, the defendant appeals from a judgment of the Supreme Court, Nassau County, entered January 26, 1961 upon the decision of the court, after a nonjury trial, in favor of the plaintiff. Judgment reversed on the law and the facts, without costs, and complaint dismissed. In our opinion, there was a 673 complete absence of proof that defendant had actual or constructive notice of the presence of the foreign substance on the floor upon which plaintiff slipped, or that defendant or its employees created the dangerous condition. Without such proof plaintiff may not recover and the complaint must be dismissed (cf. Dudley v. Abraham, 122 App. Div. 480; Eldridge v. Mike’s Meat Market, 261 App. Div. 903; Donohoe v. Great Atlantic & Pacific Tea Co., 277 App. Div. 739, 741). We have considered all the facts. In view of our opinion that there is no evidence in the record to support a finding of notice, we reverse as a matter of law for total failure of proof the trial court’s finding that defendant had constructive notice. Accordingly, we also make the contrary finding, namely: that defendant did not have constructive notice or knowledge of the dangerous condition. We affirm, however, all the other findings of fact made by the trial court in its decision or opinion. Ughetta, Acting P. J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.