Kelly v. City of New York

257 A.D. 863, 12 N.Y.S.2d 623, 1939 N.Y. App. Div. LEXIS 8198

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1939
• Status: Published

Opinion

Action to recover damages for injuries sustained by plaintiff’s intestate, resulting in his death, by reason of a fall upon an icy sidewalk. Judgment for plaintiff reversed on the law, with costs, and complaint dismissed, with costs. This accident occurred approximately twenty-eight hours after the termination of a three-day snowstorm, resulting in a snowfall of approximately seventeen inches, and, during that interim, the temperature remained at fifteen degrees or lower. Under such circumstances the defendant could not be held liable for failure to remove the snow and ice resulting from that snowfall prior to the time of the accident. Although the defendant might have been adjudged negligent in failing to remove the snow which fell to the extent of from one to two inches eight days prior to the accident, the subsequent heavy snowfall completely covered the snow and ice which had accumulated by virtue of the earlier storm. The snow of the latter storm was packed down on top of the other snow and ice along a narrow path created by passersby. Under these circumstances, a judgment for plaintiff predicated upon a finding that decedent fell on the accumulation of the snow and ice of the earlier snowstorm, as distinguished from that of the latter one, would be sheer speculation. (Taylor v. City of Yonkers, 105 N. Y. 202; Poley v. City of New York, 95 App. Div. 374; Durr v. Village of Green Island, 71 Hun, 260.) Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.