Levi v. E. J. Korvette, Inc.

Appellate Division of the Supreme Court of New York

Levi v. E. J. Korvette, Inc.

25 A.D.2d 837, 270 N.Y.S.2d 183, 1966 N.Y. App. Div. LEXIS 4231

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

DecidedMay 17, 1966

StatusPublished

This text of 25 A.D.2d 837 (Levi v. E. J. Korvette, Inc.) 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

Levi v. E. J. Korvette, Inc., 25 A.D.2d 837, 270 N.Y.S.2d 183, 1966 N.Y. App. Div. LEXIS 4231 (N.Y. Ct. App. 1966).

Pincite

Opinion

Judgment appealed from unanimously reversed, on the law and a new trial ordered, with $50 costs and disbursements to abide the event. The verdict is against the weight of the credible evidence. There is no satisfactory proof of a breach of warranty, express or implied, of fitness for use. And the testimony of plaintiff’s expert as to the angle of slope of the lawn, based entirely upon his observation of a photograph, or photographs, is entirely too speculative (cf. Valle v. City of New York, 22 Misc 2d 985; Rotker v. City of New York, 124 N. Y. S. 2d 231). This case may be distinguished from Marcus v. Manhattan Beach Parks Corp. (246 App. Div. 331) where a photograph was used to show gradual wear or deterioration of a stairway leading from a swimming pool, and merely supported proof of a worn condition testified to by the pictures. And in Becker v. Liscio (223 App. Div. [838]*838698) the photographs themselves showed a condition which gave notice of a defect. In the ease before us, the photograph merely revealed a sloping lawn, and the testimony of the angle as deduced therefrom is pure conjecture,

Concur — Breitel, J. P., MeNally, Stevens and Eager, JJ.

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Judgment appealed from unanimously reversed, on the law and a new trial ordered, with $50 costs and disbursements to abide the event. The verdict is against the weight of the credible evidence. There is no satisfactory proof of a breach of warranty, express or implied, of fitness for use. And the testimony of plaintiff’s expert as to the angle of slope of the lawn, based entirely upon his observation of a photograph, or photographs, is entirely too speculative (cf. Valle v. City of New York, 22 Misc 2d 985; Rotker v. City of New York, 124 N. Y. S. 2d 231). This case may be distinguished from Marcus v. Manhattan Beach Parks Corp. (246 App. Div. 331) where a photograph was used to show gradual wear or deterioration of a stairway leading from a swimming pool, and merely supported proof of a worn condition testified to by the pictures. And in Becker v. Liscio (223 App. Div. [838]*838698) the photographs themselves showed a condition which gave notice of a defect. In the ease before us, the photograph merely revealed a sloping lawn, and the testimony of the angle as deduced therefrom is pure conjecture,

Concur — Breitel, J. P., MeNally, Stevens and Eager, JJ.

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Bluebook (online)

25 A.D.2d 837, 270 N.Y.S.2d 183, 1966 N.Y. App. Div. LEXIS 4231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levi-v-e-j-korvette-inc-nyappdiv-1966.

Opinion

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