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Red Apple Supermarkets, Inc. v. Hudson Towers Housing Company

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 6, 2009

RED APPLE SUPERMARKETS, INC., ET AL., PLAINTIFFS-APPELLANTS,
v.
HUDSON TOWERS HOUSING COMPANY, INC., ET AL., DEFENDANTS-RESPONDENTS,
MIDSTATE MANAGEMENT, ET AL., DEFENDANTS.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 4, 2007, directing a jury verdict for defendants Hudson Towers, Marina Towers and Gateway Plaza, dismissing the complaint against them, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Nardelli, Buckley, Moskowitz, Renwick, JJ.

600420/06

Plaintiff Gristede's failed to prove the elements necessary for a res ipsa loquitur charge (see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]). There was no evidence that the power outage was of the kind ordinarily resulting from negligence. There was also no proof that the alleged negligence was a proximate cause of plaintiffs' damages.

In directing the verdict, the court gave plaintiffs every favorable inference based on the evidence submitted, but saw no rational basis upon which the jury could have found in their favor (see CPLR 4401; Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Plaintiffs failed to present any evidence as to what caused the wires to burn, which resulted in a power failure that caused them to sustain damages due to loss of revenue and product.

We have considered plaintiffs' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090106

© 1992-2009 VersusLaw Inc.



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