Davenport v. Apostol

26 A.D.2d 874, 273 N.Y.S.2d 991, 1966 N.Y. App. Div. LEXIS 3298

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1966
• Status: Published

Opinion

Reynolds, J. J.

Appeal from a judgment of the Supreme Court, Albany County, entered on a jury verdict awarding respondents a total of $2,193.55 for injuries allegedly sustained by respondent Matilda Davenport when she fell on the sidewalk in front of certain premises owned by appellant and from an order of said court denying appellant’s motions directed against that verdict. Concededly a landowner is responsible for injuries attributable to defects in the sidewalk abutting his premises if he actually creates a hazardous or defective condition which results in injury or the manner in which he utilized the sidewalk for his own purposes produces a defective condition (Mullins v. Siegel-Cooper Co., 183 N. Y. 129; Braithwaite v. Grand Union Co., 22 A D 2d 941). In the instant ease, however, we can find no evidence that a hazardous condition existed for which appellant should be held responsible. Not only is the alleged divergence in the pavement elevation at the point at which the fall occurred minimal to say the least but it is sheer conjecture that appellant’s activities rather than normal elements caused the condition. Nor is affirmance mandated by Ryan v. Gordon L. Hayes, Inc. (22 A D 2d 985) on the facts present in the instant case. Judgment and order reversed, on the law and the facts, and complaint dismissed, without costs. Gibson, P. J., Herlihy and Staley, Jr., JJ., concur; Taylor, J., not voting.