O'Boyle v. Sun Luck East, Inc.

43 A.D.2d 822, 351 N.Y.S.2d 399, 1974 N.Y. App. Div. LEXIS 5900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1974
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered on March 20, 1972, unanimously modified, on the law, to the extent of reversing and vacating the judgment against defendant-appellant, and dismissing the complaint as to defendant-appellant, without costs and without disbursements. Plaintiff sustained a fractured ankle when he was accidentally bumped on the sidewalk in front of the defendant restaurant, which caused him to lose his balance and fall down a staircase leading to the basement of the building owned by defendant-appellant. The jury found for the plaintiff against the defendant-appellant landlord, but in favor of the restaurant. It is axiomatic, as stated in Palsgraf v. Long Island R. R. Go. (248 N. Y. 339, 344), that the “risk reasonably to be perceived defines the duty to be obeyed ”. The basement staircase involved in the case at bar did not encroach on the public sidewalk. There are many such staircases in the city. The landlord could not reasonably anticipate that someone would jolt another in the street, as a result of which he would fall down the stairs. There being no proximate cause, Rivera v. City of New Torlc (11 N Y 2d 856, 857), the complaint should be dismissed. If we did not dismiss, we would order a new trial on the ground that section C26-226.0 of the Administrative Code of the City of New York which relates to basement stairways that do encroach on a public way, was read to the jury without adequate explanation that it had only a negative application as being the only code section with respect to basement stairways and did not apply to the stairway involved in the case at bar. The jury could have been confused as to the purpose of the reading of the section. Concur — Kupferman, J. P., Steuer, Tilzer and Lane, JJ.