Evans v. City of New York

Appellate Division of the Supreme Court of New York

Evans v. City of New York

43 A.D.2d 860, 352 N.Y.S.2d 431, 1974 N.Y. App. Div. LEXIS 5865

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 28, 1974

StatusPublished

This text of 43 A.D.2d 860 (Evans v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Evans v. City of New York, 43 A.D.2d 860, 352 N.Y.S.2d 431, 1974 N.Y. App. Div. LEXIS 5865 (N.Y. Ct. App. 1974).

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Opinion

In a negligence action to recover damages for personal injuries, defendant Advance Brick and Sand Corp. appeals, as limited by its brief, from so much of an amended judgment of the Supreme Court, Kings County, entered May 29, 1973, as is in favor of defendant the City of New York on its cross claim against said defendant Advance Brick and Sand Corp. (The city also appealed, but as appears by its letter to this court dated October 3, 1973 it has abandoned its appeal.) Amended judgment reversed insofar as appealed from, on the law and the facts and in the interests of justice, and new trial granted on the cross claim of defendant the City of New York against defendant Advance Brick and Sánd Corp., with costs to abide the event, and cross claim is severed from the main action. In our opinion, there was insufficient proof to sustain the award in favor of the city on its cross claim against appellant. However, under the circumstances presented, we are hereby furnishing the city the opportunity to proceed further on its cross claim to show a special use (Berg v. City of New York, 42 A D 2d 770), if it be so advised. The city was misled by the bill of particulars served upon it as to the location of the accident. Gulotta, P. J., Hopkins, Martuscello, Shapiro and Munder, JJ., concur. [72 Misc 2d 216.]

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In a negligence action to recover damages for personal injuries, defendant Advance Brick and Sand Corp. appeals, as limited by its brief, from so much of an amended judgment of the Supreme Court, Kings County, entered May 29, 1973, as is in favor of defendant the City of New York on its cross claim against said defendant Advance Brick and Sand Corp. (The city also appealed, but as appears by its letter to this court dated October 3, 1973 it has abandoned its appeal.) Amended judgment reversed insofar as appealed from, on the law and the facts and in the interests of justice, and new trial granted on the cross claim of defendant the City of New York against defendant Advance Brick and Sánd Corp., with costs to abide the event, and cross claim is severed from the main action. In our opinion, there was insufficient proof to sustain the award in favor of the city on its cross claim against appellant. However, under the circumstances presented, we are hereby furnishing the city the opportunity to proceed further on its cross claim to show a special use (Berg v. City of New York, 42 A D 2d 770), if it be so advised. The city was misled by the bill of particulars served upon it as to the location of the accident. Gulotta, P. J., Hopkins, Martuscello, Shapiro and Munder, JJ., concur. [72 Misc 2d 216.]

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Bluebook (online)

43 A.D.2d 860, 352 N.Y.S.2d 431, 1974 N.Y. App. Div. LEXIS 5865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-city-of-new-york-nyappdiv-1974.

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