Fleming v. Fifth Avenue Coach Lines, Inc.

Appellate Division of the Supreme Court of New York

Fleming v. Fifth Avenue Coach Lines, Inc.

23 A.D.2d 726, 257 N.Y.S.2d 666, 1965 N.Y. App. Div. LEXIS 4539

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

DecidedApril 1, 1965

StatusPublished

Cited by3 cases

This text of 23 A.D.2d 726 (Fleming v. Fifth Avenue Coach Lines, Inc.) 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

Fleming v. Fifth Avenue Coach Lines, Inc., 23 A.D.2d 726, 257 N.Y.S.2d 666, 1965 N.Y. App. Div. LEXIS 4539 (N.Y. Ct. App. 1965).

Pincite

Opinion

Judgment for defendant unanimously affirmed, with $50 costs to respondents. Although the trial court was apparently in error in the receipt as evidence of the report and records of the police officer and, in any event, in the failure, on request of plaintiff’s counsel, to properly limit consideration thereof to the issue of credibility of the officer, the plaintiff is not entitled to a new trial. Upon the whole ease, the plaintiff failed as a matter of law to establish actionable negligence on the part of defendant, and the motion to dismiss, made at the close of the ease, upon which decision was reserved, should have been granted. The cellar door hinge, against which the plaintiff allegedly caught her foot, causing her to fall, extended but one inch to two inches above the surface of the sidewialk. The cellar door was installed some time prior to the enactment in 1938 of the provisions of the New York City Administrative Code (§ C26-230.0), applying solely to require vault doors thereafter installed to he placed flush with the sidewalk. There was no claim of prior accidents. Furthermore, the raised hinge was such a trivial obstruction to pedestrian traffic that no reasonable man would anticipate that it would cause danger to pedestrians. (See King v. Dredger, 256 App. Div. 1086; Dowd v. City of Buffalo, 29 N. Y. 895; Keeney v. Topping, 18 A D 2d 618, affid. 13 N Y 2d 1049; Clemmons v. Cominskey, 1 A D 2d 933, affid. 2 N Y 2d 958; Liebl v. Metropolitan Jookey Club, 10 A D 2d 1006.) Since the installation when made complied with the law. and did not create a foreseeable hazard, a question of fact was not made out by the testimony of an architect, called by plaintiff, that for many years it had been the custom to install cellar doors, including the hinges, flush with the sidewalk. (Cf. Moran v. Abercrombie & Fitch Go., 22 A D 2d 779.) Concur — Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.

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Judgment for defendant unanimously affirmed, with $50 costs to respondents. Although the trial court was apparently in error in the receipt as evidence of the report and records of the police officer and, in any event, in the failure, on request of plaintiff’s counsel, to properly limit consideration thereof to the issue of credibility of the officer, the plaintiff is not entitled to a new trial. Upon the whole ease, the plaintiff failed as a matter of law to establish actionable negligence on the part of defendant, and the motion to dismiss, made at the close of the ease, upon which decision was reserved, should have been granted. The cellar door hinge, against which the plaintiff allegedly caught her foot, causing her to fall, extended but one inch to two inches above the surface of the sidewialk. The cellar door was installed some time prior to the enactment in 1938 of the provisions of the New York City Administrative Code (§ C26-230.0), applying solely to require vault doors thereafter installed to he placed flush with the sidewalk. There was no claim of prior accidents. Furthermore, the raised hinge was such a trivial obstruction to pedestrian traffic that no reasonable man would anticipate that it would cause danger to pedestrians. (See King v. Dredger, 256 App. Div. 1086; Dowd v. City of Buffalo, 29 N. Y. 895; Keeney v. Topping, 18 A D 2d 618, affid. 13 N Y 2d 1049; Clemmons v. Cominskey, 1 A D 2d 933, affid. 2 N Y 2d 958; Liebl v. Metropolitan Jookey Club, 10 A D 2d 1006.) Since the installation when made complied with the law. and did not create a foreseeable hazard, a question of fact was not made out by the testimony of an architect, called by plaintiff, that for many years it had been the custom to install cellar doors, including the hinges, flush with the sidewalk. (Cf. Moran v. Abercrombie & Fitch Go., 22 A D 2d 779.) Concur — Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.

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23 A.D.2d 726, 257 N.Y.S.2d 666, 1965 N.Y. App. Div. LEXIS 4539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleming-v-fifth-avenue-coach-lines-inc-nyappdiv-1965.

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