Konsek v. Stop-N-Go Foods, Inc.

Judgment unanimously reversed, on the law, with costs, and new trial granted. Memorandum: The court erred in refusing plaintiff’s request to charge the jury that evidence of absence of prior accidents at the location where plaintiff fell was a factor for the jury to consider but was not conclusive on the issue of whether the sidewalk was defective (see, Orlick v Granit Hotel & Country Club, 30 NY2d 246 ; Wozniak v 100 S. Main St. Land & Dev. Improvement Corp., 61 AD2d 848 ). (Appeal from judgment of Supreme Court, Erie County, Joslin, J.—negligence.) Present—Callahan, J. P., Doerr, Boomer, Pine and Schnepp, JJ.