SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
December 4, 1969
REBECCA KRITZ, RESPONDENT,
MANUFACTURERS HANOVER TRUST COMPANY, APPELLANT, AND HANDI-MAN CO., INC., RESPONDENT, ET AL., DEFENDANTS
Concur -- Eager, J. P., Capozzoli, McGivern, Nunez and McNally, JJ.
The presence of a 1 1/2 to 2 inch piece of paper, similar to a candy wrapper, on the bank's doorstep is not of such a character as to impose liability on the defendant or of such a nature that the probability of injury could have been foreseen in the exercise of care and prudence. (Clemmons v. Cominskey, 1 A.D.2d 933
, affd. 2 N.Y.2d 958.) If we did not dismiss the complaint, we would set aside the verdict on the ground that it is against the weight of the eivdence, and on the further ground that it was error to permit plaintiff's doctor testify, over objection, in contravention of rule 11 of the Rules of the Supreme Court, New York and Bronx Counties (22 NYCRR 660.11), his report not having previously been served on appellant. It was further error to permit plaintiff's counsel to argue to the jury that he took the case only because he believed plaintiff was an honest woman.
Amended judgment, dated June 11, 1968, unanimously reversed on the law, with $50 costs and disbursements to appellant, and the complaint dismissed, on the ground there was no actionable negligence proven.
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