17 A.D.2d 899 | N.Y. App. Div. | 1962
Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event. Memorandum: Plaintiff wife, a customer in defendant’s retail grocery store, was injured when she slipped and fell as the result of stepping in melted ice cream on the floor near the checkout counters. There was no proof of direct notice to defendant of the existing condition but one of plaintiffs’ witnesses testified that she was nearby, heard a noise and saw Mrs. Greco on the floor. She said that the latter had fallen in a “white mess” that she had observed 30 to 45 minutes earlier when she entered the store. The trial court dismissed the complaint at the end of plaintiffs’ ease upon the ground that “ The extent and character of