SEPTOFF v. LA SHELLDA MAINTENANCE CORP

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Supreme Court, Appellate Division, Second Department, New York.

Noralee SEPTOFF, et al., Appellants, v. LA SHELLDA MAINTENANCE CORP., Respondent (And a Third-Party Action).

Decided: September 22, 1997

Before THOMPSON, J.P., and PIZZUTO, FRIEDMANN and KRAUSMAN, JJ. Levine & Slavit, New York City, for appellants. Puglisi & Garber, Lake Success (Frank J. Puglisi, of counsel), for respondent.

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from so much of a judgment of the Supreme Court, Kings County (Shaw, J.), entered July 17, 1996, as, upon a jury verdict, is in favor of the defendant and against them dismissing the complaint.

ORDERED that the judgment is reversed insofar as appealed from, on the law, and a new trial is granted, with costs to abide the event.

 The plaintiff, Noralee Septoff, was injured when she slipped and fell on a substance on the floor in a store operated by the third-party defendant, Rock Bottom Inc. The defendant La Shellda Maintenance Corp. had been hired to strip the existing wax on the floors and to apply new wax.   The plaintiffs contend that the slippery condition was created by the defendant's employees' use of a wax stripping material.

The trial court initially instructed the jury that the defendant could be found negligent if its employees created the dangerous condition and had notice of that condition.   This instruction was incorrect, because there is no notice requirement where the defendant has created the dangerous condition (see, Panagakos v. Greek Archdiocese of N. & S. Am., 213 A.D.2d 336, 624 N.Y.S.2d 37;  Ohanessian v. Chase Manhattan Realty Leasing Corp., 193 A.D.2d 567, 598 N.Y.S.2d 204).   Although, the trial court properly agreed to give a modified instruction, the modified instruction may well have confused the jury and warrants reversal (see, J.R. Loftus, Inc. v. White, 85 N.Y.2d 874, 626 N.Y.S.2d 52, 649 N.E.2d 1196;  Cumbo v. Valente, 118 A.D.2d 679, 500 N.Y.S.2d 30).   Accordingly, a new trial is ordered.

The plaintiffs' remaining contention is without merit (see, Harvey v. Mazal Am. Partners, 79 N.Y.2d 218, 581 N.Y.S.2d 639, 590 N.E.2d 224;  People v. Pike, 131 A.D.2d 890, 517 N.Y.S.2d 246).

MEMORANDUM BY THE COURT.

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