dissents and votes to reverse the interlocutory judgment and grant a new trial, with the following memorandum: The rule of law applicable to this appeal is straightforward and well settled. “Proof of notice, either actual or constructive, has always been said to be essential to recovery by a customer who has fallen because of a foreign substance on the floor of a supermarket or store” (Cameron v Bohack Co., 27 AD2d 362, 364). Proof of notice is excused, however, where it is established that a dangerous condition was created by the defendant or its agents or employees (1 PJI [2d ed], p 274).
The majority hinges upon this caveat by a reading of the plaintiffs’ opening and closing statements. Unfortunately, this is like looking at two pieces of bread and calling them a sandwich. The “beef” is far more revealing.
Defendant made a motion to dismiss for failure to establish a prima facie case and for a charge on notice. That colloquy was as follows:
“mr. judge [Defense counsel] * * * [T]here has been absolutely no evidence with respect to notice in this case. How long these boxes existed on the — at the place where he fell. There’s no evidence of anybody putting the boxes there * * *
“There’s absolutely no indication in this lawsuit as to when those boxes were placed in the aisle. Who placed them in the aisle. How long they were in the aisle * * *
“mr. feder [Plaintiffs’ counsel]: There’s no necessity to prove notice when the defendant creates the condition * * *
“mr. judge: There’s no evidence of that. There’s no direct evidence of anybody ever placing a box there * * *
“the court: Counselor, the jury has every right to infer that the gentlemen on the other side of the aisle placed that carton or that box on this side of the aisle.
“Motion is denied and notice is not an element in this case.”*
The difficulty here, then, is that the trial court did not instruct the jury that it had to find either that there was notice or that *564the defendant affirmatively created the condition (see, e.g., Lederer v Samuel Broadway Food Corp., 33 AD2d 553; Carroll v Great Atlantic & Pacific Tea Co., 258 App Div 937; Ann., 61 ALR2d 110, 124, 132). Because the jury was not called upon to make a factual determination with respect to the condition precedent excusing notice, there must be a reversal and a new trial, irrespective of the arguments made by plaintiffs’ counsel in his opening and closing. At the new trial, the claim with respect to negligence in applying wax to the floor should be governed by Galler v Prudential Ins. Co. (63 NY2d 637).
Even in defendant’s opening, counsel stressed “this is what we call a blind accident. We were not present when the accident occurred. Nobody observed or viewed the accident”.