Mingone v. Ardsley Union Free School District

215 A.D.2d 463, 626 N.Y.S.2d 264, 1995 N.Y. App. Div. LEXIS 4851

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1995
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Wood, J.), entered November 19, 1993, which, upon the granting of the defendant’s motion pursuant to CPLR 4401 for judgment as a matter of law, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

We agree with the Supreme Court that the plaintiffs failed to make out a prima facie case. There was insufficient evidence that the condition which caused the infant plaintiff’s injury, a piece of wire sticking horizontally out of a rusty fence, was in existence for a sufficient time for the defendant, in the exercise of due care, to have been charged with constructive notice of the condition. The plaintiffs failed to show how the existence of rust on that fence and/or wire proves that the wire was sticking out in a hazardous position for any length of time. Accordingly, the action was properly dismissed (see, Gordon v American Museum of Natural History, 67 NY2d 836; Capone v Schaible, 211 AD2d 661; cf., Negri v Stop & Shop, 65 NY2d 625). Thompson, J. P., Santucci, Friedmann and Florio, JJ., concur.