Dunlop v Toys "R" Us, Inc.

[*1] Dunlop v Toys "R" Us, Inc. 2005 NYSlipOp 50373(U) Decided on March 23, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 23, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., ANGIOLILLO and COVELLO, JJ.
2004-312 D C

Winston Dunlop, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF CHELSEA DUNLOP, INFANT UNDER THE AGE OF 14, Respondents,

against

Toys "R" Us, Inc., Appellant.

Appeal by defendant from a judgment of the City Court of Poughkeepsie, Dutchess County (R. McGaw, J.), entered August 14, 2003, after a non-jury trial, in favor of plaintiffs in the principal sum of $15,000.

Judgment unanimously reversed without costs and judgment directed to be entered in favor of defendant dismissing the complaint.

The infant plaintiff's pants leg became caught on a protruding piece of metal in the bicycle aisle of defendant's store, causing her to fall and break a finger. The plaintiffs failed to make any showing that the defendant either created the condition which caused the accident, or had actual or constructive notice of it. To constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Russo v Eveco Dev. Corp., 256 AD2d 566 [1998]). The lower court found that there was no showing of any negligence on the part of defendant in building the platform from which the metal piece protruded and that the piece which became loose did so when a customer pulled on the display carpeting. Upon the record presented, plaintiff failed to establish that the [*2]condition existed for a sufficient period of time so as to warrant a finding of liability on defendant's part based on a theory of constructive notice. Consequently, judgment should be entered in favor of defendant dismissing the complaint.
Decision Date: March 23, 2005