Nicoletti v. General Linen Supply Laundry Co.

285 A.D. 957, 138 N.Y.S.2d 159, 1955 N.Y. App. Div. LEXIS 6291

Opinion

In an action to recover damages for personal injuries sustained by the infant plaintiff and by his father to recover for medical expenses and loss of services, it appeared that a step located wholly within defendant’s property line, but in proximity to the public sidewalk, crumbled when the infant plaintiff walked on it. The infant plaintiff was concededly a trespasser or a bare licensee. The complaint was dismissed after trial, the court stating that, although a defective condition existed on defendant’s property for several years, to defendant’s knowledge, there was no duty owing to the infant plaintiff. Plaintiffs appeal from the judgment entered thereon. Judgment unanimously affirmed, without costs. There was no proof that the step constituted any more than a defective condition permitted to continue until decay or mere failure to repair resulted in injuries to the infant plaintiff. There is no proof that the condition of the step constituted an inherently dangerous instrumentality or a deceptive trap or that the condition was created by the affirmative negligence of the defendant. Under such circumstances, there is no liability on the part of the defendant. (Carbone v. Mackchil Realty Corp., 296 N. Y. 154; Mayer v. Temple Properties, 307 N. Y. 559, 564.) Present — Nolan, P. J., MacCrate, Schmidt, Beldock and Murphy, JJ.