Filsno v. City of Rochester

Appellate Division of the Supreme Court of New York

Filsno v. City of Rochester

10 A.D.2d 663, 196 N.Y.S.2d 311, 1960 N.Y. App. Div. LEXIS 11871

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

DecidedFebruary 4, 1960

StatusPublished

Cited by7 cases

This text of 10 A.D.2d 663 (Filsno v. City of Rochester) 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

Filsno v. City of Rochester, 10 A.D.2d 663, 196 N.Y.S.2d 311, 1960 N.Y. App. Div. LEXIS 11871 (N.Y. Ct. App. 1960).

Pincite

Opinion

Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The complaint was dismissed at the close of plaintiff’s ease apparently upon the ground that there had been a failure to prove compliance with an ordinance of defendant city which provided in substance that the city should not be liable and no action might be maintained against it for damages in consequence of any sidewalk being defective unless written notice thereof had been given and there was a failure to repair within a reasonable time. In our opinion questions of fact were presented that required submission of the ease to a jury. It might be found that plaintiff tripped and fell by reason of respondent’s negligence in causing and maintaining a dangerous condition in the sidewalk in the form of a cast-iron cover over a survey monument installed more than 40 years ago by the city. Thereby respondent was making a special use of the portion of the sidewalk where the accident occurred. An issue was thus presented as to whether the city was responsible for the creating of the defect as a special user. The provisions of the ordinance would have no applicability if it were found that the city caused and maintained the condition. (Cf. Appelbaum v. City of Long Beach, 8 A D 2d 818; Weiser v. City of New York, 5 A D 2d 702; Cummings v. City of Norwich, 286 App. Div. 612, 617; Crandall v. City of Amsterdam, 254 App. Div. 39.) (Appeal from a judgment of Monroe Trial Term dismissing the complaint, at the close of plaintiff’s case, in an action for damages for personal injuries alleged to have been sustained by plaintiff by reason of her having fallen on a public sidewalk.) Present — Bastow, J. P., Goldman, Halpern and MeClusky, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The complaint was dismissed at the close of plaintiff’s ease apparently upon the ground that there had been a failure to prove compliance with an ordinance of defendant city which provided in substance that the city should not be liable and no action might be maintained against it for damages in consequence of any sidewalk being defective unless written notice thereof had been given and there was a failure to repair within a reasonable time. In our opinion questions of fact were presented that required submission of the ease to a jury. It might be found that plaintiff tripped and fell by reason of respondent’s negligence in causing and maintaining a dangerous condition in the sidewalk in the form of a cast-iron cover over a survey monument installed more than 40 years ago by the city. Thereby respondent was making a special use of the portion of the sidewalk where the accident occurred. An issue was thus presented as to whether the city was responsible for the creating of the defect as a special user. The provisions of the ordinance would have no applicability if it were found that the city caused and maintained the condition. (Cf. Appelbaum v. City of Long Beach, 8 A D 2d 818; Weiser v. City of New York, 5 A D 2d 702; Cummings v. City of Norwich, 286 App. Div. 612, 617; Crandall v. City of Amsterdam, 254 App. Div. 39.) (Appeal from a judgment of Monroe Trial Term dismissing the complaint, at the close of plaintiff’s case, in an action for damages for personal injuries alleged to have been sustained by plaintiff by reason of her having fallen on a public sidewalk.) Present — Bastow, J. P., Goldman, Halpern and MeClusky, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

10 A.D.2d 663, 196 N.Y.S.2d 311, 1960 N.Y. App. Div. LEXIS 11871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/filsno-v-city-of-rochester-nyappdiv-1960.

Opinion

Related

Cite This Page — Counsel Stack