Perito v. Sunrise Supermarket Corp. , 33 Misc. 2d 627 ( 1961 )

Per Curiam.

We are of the opinion that the res ipsa loquitur doctrine is applicable to the situation at bar (Robinson v. Atlantic & Pacific Tea Co., 184 Misc. 571, affd. 269 App. Div. 977; Higgins v. Ruppert, 124 App. Div. 530). However, the charge to the jury on this aspect of the case was wholly inadequate and the refusal to charge that the rule is a presumption which may be overcome by other evidence was erroneous and prejudicial (George Foltis, Inc., v. City of New York, 287 N. Y. 108; Galbraith v. Busch, 267 N. Y. 230). It was also error to dismiss as to defendant Liebmann Breweries, Inc., before defendant Sunrise Supermarket Corp. had an opportunity to adduce any proof in support of its cross complaint.

The judgment should be reversed and a new trial ordered, with $30 costs to defendant Sunrise Supermarket Corp. to abide the event.