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HEGBELI v. THE TJX COS., INC.

Index No. 160355/16. Appeal No. 15169. Case No. 2021-01681.

201 A.D.3d 588 (2022)

158 N.Y.S.3d 554

2022 NY Slip Op 00502

Eugenia Hegbeli, Appellant, v. The TJX Companies, Inc., Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided January 27, 2022.

Attorney(s) appearing for the Case

Law Offices of Donald M. Zolin, New York (Donald M. Zolin of counsel), for appellant.

Weiner Law Group LLP, New York (Philip H. Ziegler of counsel), for respondent.

Concur—Kapnick, J.P., Gesmer, González, Kennedy, Shulman, JJ.

The court correctly denied plaintiff's request for a charge pursuant to res ipsa loquitur, as the table that plaintiff testified fell and injured her was situated on an open sales floor in the store and therefore was not in the exclusive control of defendant (see Rivera-Emerling v M. Fortunoff of Westbury Corp., 281 A.D.2d 215, 217 [1st Dept 2001]).

However, the court erred in declining to give an adverse inference charge...

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