Heeney v. Topping

Appellate Division of the Supreme Court of New York

Heeney v. Topping

18 A.D.2d 618, 234 N.Y.S.2d 724, 1962 N.Y. App. Div. LEXIS 6545

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

DecidedDecember 6, 1962

StatusPublished

Cited by1 cases

This text of 18 A.D.2d 618 (Heeney v. Topping) 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

Heeney v. Topping, 18 A.D.2d 618, 234 N.Y.S.2d 724, 1962 N.Y. App. Div. LEXIS 6545 (N.Y. Ct. App. 1962).

Pincite

Opinion

Judgment in favor of plaintiff for $48,224.33 reversed, on the law and on the facts, with costs to defendants-appellants, the verdict vacated, and the complaint dismissed. In this personal injury negligence action plaintiff failed to establish actionable negligence. The protruding repair of a concrete fissure, about an inch high, consisting of an asphalt-like material, otherwise smooth, did not create a foreseeable hazard to users of the baseball stadium (Dowd v. City of Buffalo, 290 [619]*619N. Y. 895; Clemmons v. Commiskey, 2 N Y 2d 958, affg. 1 A D 2d 933, 1 A D 2d 934). On this view, plaintiff failed to establish a prima facie case. In any event, were it necessary to reach the question, the verdict in favor of plaintiff was against the weight of the credible evidence, and a new trial on that ground would have been required (Brannigan v. City of Plattsburgh, 3 A D 2d 637, a case involving a defect more grave than here involved; Liebl v. Metropolitan Jockey Club, 10 A D 2d 1006). Settle order on notice. Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.

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Judgment in favor of plaintiff for $48,224.33 reversed, on the law and on the facts, with costs to defendants-appellants, the verdict vacated, and the complaint dismissed. In this personal injury negligence action plaintiff failed to establish actionable negligence. The protruding repair of a concrete fissure, about an inch high, consisting of an asphalt-like material, otherwise smooth, did not create a foreseeable hazard to users of the baseball stadium (Dowd v. City of Buffalo, 290 [619]*619N. Y. 895; Clemmons v. Commiskey, 2 N Y 2d 958, affg. 1 A D 2d 933, 1 A D 2d 934). On this view, plaintiff failed to establish a prima facie case. In any event, were it necessary to reach the question, the verdict in favor of plaintiff was against the weight of the credible evidence, and a new trial on that ground would have been required (Brannigan v. City of Plattsburgh, 3 A D 2d 637, a case involving a defect more grave than here involved; Liebl v. Metropolitan Jockey Club, 10 A D 2d 1006). Settle order on notice. Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.

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Bluebook (online)

18 A.D.2d 618, 234 N.Y.S.2d 724, 1962 N.Y. App. Div. LEXIS 6545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heeney-v-topping-nyappdiv-1962.

Opinion

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