Kennelly v. City of New York

Appellate Division of the Supreme Court of New York

Kennelly v. City of New York

15 A.D.2d 910, 225 N.Y.S.2d 996, 1962 N.Y. App. Div. LEXIS 10765

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

DecidedMarch 27, 1962

StatusPublished

This text of 15 A.D.2d 910 (Kennelly 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

Kennelly v. City of New York, 15 A.D.2d 910, 225 N.Y.S.2d 996, 1962 N.Y. App. Div. LEXIS 10765 (N.Y. Ct. App. 1962).

Pincite

Opinion

In view of the proof regarding the condition of the cobblestone drive and the inconsistencies between the trial testimony for plaintiff and the prior statements describing the circumstances of the accident, the verdict is contrary to the weight of the credible evidence. Plaintiff, prior to the trial, testified that he fell over “ rocks or debris or whatever you call this garbage and everything was there.” At the trial, these loosely described obstacles became a single large cobblestone projecting five inches above the drive. Another pretrial statement by a witness described the few irregularities in the drive as amounting to only a one-inch difference in the level of the cobblestones. Moreover, plaintiff’s description of his movements before, and as, he fell defies probabilities and is not credible. Thus, the record is devoid of any believable version of the accident which would establish defendant’s negligence as the proximate cause. Concur — Botein, P. J., Breitel, Rabin, McNally and Stevens, JJ.

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In view of the proof regarding the condition of the cobblestone drive and the inconsistencies between the trial testimony for plaintiff and the prior statements describing the circumstances of the accident, the verdict is contrary to the weight of the credible evidence. Plaintiff, prior to the trial, testified that he fell over “ rocks or debris or whatever you call this garbage and everything was there.” At the trial, these loosely described obstacles became a single large cobblestone projecting five inches above the drive. Another pretrial statement by a witness described the few irregularities in the drive as amounting to only a one-inch difference in the level of the cobblestones. Moreover, plaintiff’s description of his movements before, and as, he fell defies probabilities and is not credible. Thus, the record is devoid of any believable version of the accident which would establish defendant’s negligence as the proximate cause. Concur — Botein, P. J., Breitel, Rabin, McNally and Stevens, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

15 A.D.2d 910, 225 N.Y.S.2d 996, 1962 N.Y. App. Div. LEXIS 10765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennelly-v-city-of-new-york-nyappdiv-1962.