Friedman v. 221 Fifth Avenue Corp.

Appellate Division of the Supreme Court of New York

Friedman v. 221 Fifth Avenue Corp.

282 A.D.2d 571, 723 N.Y.S.2d 373, 2001 N.Y. App. Div. LEXIS 3809

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

DecidedApril 16, 2001

StatusPublished

Cited by1 cases

This text of 282 A.D.2d 571 (Friedman v. 221 Fifth Avenue Corp.) 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

Friedman v. 221 Fifth Avenue Corp., 282 A.D.2d 571, 723 N.Y.S.2d 373, 2001 N.Y. App. Div. LEXIS 3809 (N.Y. Ct. App. 2001).

Pincite

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (S. Le-one, J.), entered July 12, 2000, which, upon the granting of the defendant’s motion pursuant to CPLR 4401, made at the close of evidence, for judgment as a matter of law dismissing the complaint for failure to establish a prima facie case, is in favor of the defendant and against them.

Ordered that the judgment is affirmed, with costs.

The injured plaintiff and her husband brought this action to recover damages, inter alia, for personal injuries she allegedly suffered when she tripped and fell on the sidewalk outside the defendant’s premises. According to the plaintiffs, the defendant created the allegedly defective condition. At the close of the evidence at trial, the defendant moved to dismiss the complaint for failure to establish a prima facie case. The court granted the motion and the plaintiffs appeal. We affirm.

The Supreme Court properly granted the defendant’s motion to dismiss the complaint since, “upon viewing the evidence in a light most favorable to the plaintiff[s] there is no rational process by which a jury could find for the plaintiff[s] and against the moving defendant” (DiGiovanni v Rausch, 226 AD2d 420; see, McCarthy v City of New York, 250 AD2d 654, 655). Contrary to the plaintiffs’ assertion, the evidence at trial [572]*572failed to establish that the defendant created the allegedly dangerous condition which caused the injured plaintiff to trip and fall. The testimony of the plaintiffs’ expert witness that the defendant created the condition was improperly based on speculation (see, Carbo v City of New York, 275 AD2d 439; see also, Madtes v Town of Brookhaven, 275 AD2d 443; Masterson v City of New York, 272 AD2d 591). Krausman, J. P., Friedmann, Feuerstein and Smith, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (S. Le-one, J.), entered July 12, 2000, which, upon the granting of the defendant’s motion pursuant to CPLR 4401, made at the close of evidence, for judgment as a matter of law dismissing the complaint for failure to establish a prima facie case, is in favor of the defendant and against them.

Ordered that the judgment is affirmed, with costs.

The injured plaintiff and her husband brought this action to recover damages, inter alia, for personal injuries she allegedly suffered when she tripped and fell on the sidewalk outside the defendant’s premises. According to the plaintiffs, the defendant created the allegedly defective condition. At the close of the evidence at trial, the defendant moved to dismiss the complaint for failure to establish a prima facie case. The court granted the motion and the plaintiffs appeal. We affirm.

The Supreme Court properly granted the defendant’s motion to dismiss the complaint since, “upon viewing the evidence in a light most favorable to the plaintiff[s] there is no rational process by which a jury could find for the plaintiff[s] and against the moving defendant” (DiGiovanni v Rausch, 226 AD2d 420; see, McCarthy v City of New York, 250 AD2d 654, 655). Contrary to the plaintiffs’ assertion, the evidence at trial [572]*572failed to establish that the defendant created the allegedly dangerous condition which caused the injured plaintiff to trip and fall. The testimony of the plaintiffs’ expert witness that the defendant created the condition was improperly based on speculation (see, Carbo v City of New York, 275 AD2d 439; see also, Madtes v Town of Brookhaven, 275 AD2d 443; Masterson v City of New York, 272 AD2d 591). Krausman, J. P., Friedmann, Feuerstein and Smith, JJ., concur.

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Bluebook (online)

282 A.D.2d 571, 723 N.Y.S.2d 373, 2001 N.Y. App. Div. LEXIS 3809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-221-fifth-avenue-corp-nyappdiv-2001.

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