Bushman v. Kiamesha-Concord, Inc. , 396 N.Y.S.2d 44 ( 1977 )

— In a negligence action to recover damages for personal injuries, defendant appeals from a judgment of the Supreme Court, Kings County, entered January 20, 1976, which is in favor of plaintiff and against it, upon a jury verdict. Judgment reversed, on the law and the facts, and new trial granted, with costs to abide the event. In our opinion the verdict was contrary to the weight of the evidence. Moreover, the verdict was based upon an erroneous charge which was highly misleading as to the matter of notice, suggesting an entirely arbitrary time as a criterion of constructive notice. Raymond DeLong, defendant-appellant’s employee in charge of the ice skating rink on June 4, 1972, the day of the accident, testified that he checked the rink every 10 or 15 minutes to determine if it was suitable for skating. Based upon Mr. DeLong’s testimony, the trial court charged the jury that if the alleged rut, or hole, existed for more than 15 minutes, then defendant, in the exercise of reasonable care, should have corrected the condition. This was erroneous. Under the circumstances defendant’s failure to discover the hole within 15 minutes does not necessarily establish negligence. Cohalan, J. P., Damiani, Rabin and Titone, JJ., concur.