CATERINA FARICELLI ET AL., APPELLANTS, v. TSS SEEDMAN'S, INC., RESPONDENT,
BRITE OFFICE CLEANING CORP., DEFENDANT. ---------------------------------
(AND A THIRD-PARTY ACTION.)
94 N.Y.2d 772 (1999).
October 14, 1999
2 No. 207 SSM 9
(99 NY Int. 0130)
Decided October 14, 1999
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Submitted by Stephen A. Harrison, for appellants.
Submitted by Peter E. Vairo, for defendant.
Submitted by Jon D. Lichtenstein, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs.
Plaintiff-wife slipped and fell on a blackened banana peel on the
floor in the housewares section of a department storeoperated by
defendant TSS Seedman's, Inc., and brought suit for damages.
Plaintiffs contended that, because the peel was blackened, defendant
must have had notice of a dangerous condition on the premises.
Defendant moved for summary judgment, arguing that there was no
triable issue of fact on the issue of notice. Supreme Court denied
summary judgment, and defendant appealed but failed to perfect its
appeal, which the Appellate Division dismissed for want of
prosecution.
After trial, the jury found defendant 95% liable and plaintiffs 5%
liable. Defendant then filed the instant appeal, arguing that
plaintiffs did not present sufficient proof of constructive notice to
support the verdict. Plaintiffs moved to dismiss defendant's appeal on
the ground that, having abandoned its earlier appeal, defendant should
not be permitted to re-litigate the issue of constructive notice. The
Appellate Division denied plaintiffs' motion and reversed, concluding
that plaintiffs did not establish constructive notice. We now affirm.
The Appellate Division did not err when it declined to dismiss
SNIPPETS:
BRITE OFFICE CLEANING CORP., DEFENDANT.
This opinion is uncorrected and subject to revision before publication in the New York
for respondent.
Plaintiff-wife slipped and fell on a blackened banana peel on the floor in the housewares
Plaintiffs contended that, because the peel was blackened, defendant must have had notice of
Supreme Court denied summary judgment, and defendant appealed but failed to perfect its
Defendant then filed the instant appeal, arguing that plaintiffs did not present sufficient
Plaintiffs moved to dismiss defendant's appeal on the ground that, having abandoned its
The Appellate Division denied plaintiffs' motion and reversed, concluding that plaintiffs did
We now affirm.
As we stated in Bray v Cox (38 NY2d 350, 353), "a prior dismissal for want of prosecution
However, an appellate court has the authority to entertain a second appeal in the exercise of
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs,
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick and Wesley concur.
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