Kaplan v. City of New York

Appellate Division of the Supreme Court of New York

Kaplan v. City of New York

25 A.D.2d 827, 269 N.Y.S.2d 587, 1966 N.Y. App. Div. LEXIS 4289

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

DecidedMay 10, 1966

StatusPublished

This text of 25 A.D.2d 827 (Kaplan 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

Kaplan v. City of New York, 25 A.D.2d 827, 269 N.Y.S.2d 587, 1966 N.Y. App. Div. LEXIS 4289 (N.Y. Ct. App. 1966).

Pincite

Opinion

Judgment for defendant-respondent City of New York pursuant to a jury verdict against plaintiff-appellant, in an action for personal injuries sustained in a fall on an allegedly defective sidewalk, unanimously reversed on the law, and a new trial ordered, with $50 costs and disbursements to abide the event. While the accusations made by plaintiff’s counsel were without sufficient legal basis and were therefore provocative, the Trial Justice’s charge exceeded proper limits in commenting on those accusations. Moreover, it was error to charge that courts have held that depressions in the sidewalk amounting “ at its greater variance to two and three-quarters of an inch, or to three inches, even if poorly lighted, or obstructed by shadows, does not constitute negligent maintenance of a sidewalk by the municipality. The fact that the edge of the concrete slab of the sidewalk was raised two to three inches higher than the adjoining slab proves no actionable negligence.” (Loughran v. City of New York, 298 N. Y. 320; Carbin v. City of New York, 276 App. Div. 980, affd. 301 N. Y. 646; Lotito v. City of New York, 278 App. Div. 581; Anno: Sidewalk Defect— Question for Jury, 37 ALR 2d 1187.) The charge, in effect, was a direction for a verdict, and the record does not warrant a direction. Appeal from order entered May 28, 1965 unanimously dismissed, as academic, without costs and without disbursements. No opinion.

Concur — Botein, P. J., Breitel, McNally and Eager, JJ.

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Judgment for defendant-respondent City of New York pursuant to a jury verdict against plaintiff-appellant, in an action for personal injuries sustained in a fall on an allegedly defective sidewalk, unanimously reversed on the law, and a new trial ordered, with $50 costs and disbursements to abide the event. While the accusations made by plaintiff’s counsel were without sufficient legal basis and were therefore provocative, the Trial Justice’s charge exceeded proper limits in commenting on those accusations. Moreover, it was error to charge that courts have held that depressions in the sidewalk amounting “ at its greater variance to two and three-quarters of an inch, or to three inches, even if poorly lighted, or obstructed by shadows, does not constitute negligent maintenance of a sidewalk by the municipality. The fact that the edge of the concrete slab of the sidewalk was raised two to three inches higher than the adjoining slab proves no actionable negligence.” (Loughran v. City of New York, 298 N. Y. 320; Carbin v. City of New York, 276 App. Div. 980, affd. 301 N. Y. 646; Lotito v. City of New York, 278 App. Div. 581; Anno: Sidewalk Defect— Question for Jury, 37 ALR 2d 1187.) The charge, in effect, was a direction for a verdict, and the record does not warrant a direction. Appeal from order entered May 28, 1965 unanimously dismissed, as academic, without costs and without disbursements. No opinion.

Concur — Botein, P. J., Breitel, McNally and Eager, JJ.

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Bluebook (online)

25 A.D.2d 827, 269 N.Y.S.2d 587, 1966 N.Y. App. Div. LEXIS 4289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaplan-v-city-of-new-york-nyappdiv-1966.

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