Opinion
November 18, 1965
Appeal from a judgment of the Supreme Court, Albany County, dismissing the complaint at the close of appellants' case (CPLR, 4401). Appellants seek damages for personal injuries purportedly suffered by appellant Theresa Marotta when she was allegedly struck by a bag containing wet garbage which fell from a window on the top floor of respondent's store in Menands, New York. It is evident from the record that very early in the trial the court below indicated that it did not think that appellants could avail themselves of the doctrine of res ipsa loquitur and that, therefore, it would favorably entertain a motion to dismiss. It also seems that knowledge of the court's position caused appellants' attorney to curtail his proof to the point that he did not even call Theresa Marotta to establish that it was the bag of garbage which struck her and caused her injuries. We think therefore, that in the interests of justice a new trial should be held at which appellants will have a full opportunity to develop their proof, including proof as to the extent of respondent's control over that portion of the premises from which the bag allegedly dropped, prior to a determination of the applicability of the doctrine of res ipsa loquitur. Judgment reversed, on the law and the facts, and a new trial ordered, with costs to abide the event. Herlihy, J.P., Taylor, Aulisi and Hamm, JJ., concur.