Blaustein v. Levitt

24 A.D.2d 862, 264 N.Y.S.2d 318, 1965 N.Y. App. Div. LEXIS 3082

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1965
• Status: Published

Opinion

In an action to recover damages for personal injuries sustained by plaintiff when he attempted to cross a 6-foot wide “ island ” situated between the place in the parking lot where he had parked his car and the entrance to the apartment house owned by defendant, in which house plaintiff was a tenant, defendant appeals from a judgment of the Supreme Court, Queens County, entered September 29, 1964, on a verdict in the plaintiff’s favor. Judgment affirmed, with costs. Planted in the center of the “ island ” was a young tree about 4 or 5 feet high from which a wire was stretched from a height of 2% to 3 feet to a peg about 2 or 2% feet away. In attempting to cross the island, plaintiff tripped on the wire, which was invisible to him on this rainy night in this unlighted area. The jury could find that defendant had the duty to anticipate that a person parking his ear in the parking area would attempt to get to the entrance of the apartment house in which he was a tenant directly from the parking lot on the far side of the island, rather than to go around the island (Durham v. Rayjohn Corp., 12 N Y 2d 857). Contributory negligence was a question of fact. Beldock, P. J., Ughetta, Christ, Brennan and Hill, JJ., concur.