O'Connor v. Consolidated Edison Co. of New York, Inc.

Appellate Division of the Supreme Court of New York

O'Connor v. Consolidated Edison Co. of New York, Inc.

55 A.D.3d 356, 865 N.Y.S.2d 202

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

DecidedOctober 9, 2008

StatusPublished

Cited by1 cases

This text of 55 A.D.3d 356 (O'Connor v. Consolidated Edison Co. of New York, 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

O'Connor v. Consolidated Edison Co. of New York, Inc., 55 A.D.3d 356, 865 N.Y.S.2d 202 (N.Y. Ct. App. 2008).

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Opinion

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about October 30, 2007, which, in an action for personal injuries sustained in a slip and fall on an ice patch in a public roadway abutting a vacant lot owned by defendant, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

No issue of fact exists as to whether the ice patch was created by defendant’s structures on defendant’s abutting lot that allegedly diverted the flow of rain water from the lot (see Roark v Hunting, 24 NY2d 470, 475 [1969]). Log structures on the lot intended as retaining walls to manage the flow of rain water down the sloping lot did not contain the water. It does not appear, however, from plaintiffs expert’s affidavit or report that this failure resulted in anything more than the water taking the natural course it would have taken down the slope and onto the street had the structures never been placed on the lot. Since defendant had no duty “to adopt measures to prevent the flowage of surface water from [its] premises” in the first place (see Tremblay v Harmony Mills, 171 NY 598, 601 [1902]), it cannot be held liable for having adopted measures that were merely ineffective. We have considered plaintiffs other arguments and find them unavailing. Concur — Andrias, J.P., Nardelli, McGuire, Moskowitz and Renwick, JJ.

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Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about October 30, 2007, which, in an action for personal injuries sustained in a slip and fall on an ice patch in a public roadway abutting a vacant lot owned by defendant, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

No issue of fact exists as to whether the ice patch was created by defendant’s structures on defendant’s abutting lot that allegedly diverted the flow of rain water from the lot (see Roark v Hunting, 24 NY2d 470, 475 [1969]). Log structures on the lot intended as retaining walls to manage the flow of rain water down the sloping lot did not contain the water. It does not appear, however, from plaintiffs expert’s affidavit or report that this failure resulted in anything more than the water taking the natural course it would have taken down the slope and onto the street had the structures never been placed on the lot. Since defendant had no duty “to adopt measures to prevent the flowage of surface water from [its] premises” in the first place (see Tremblay v Harmony Mills, 171 NY 598, 601 [1902]), it cannot be held liable for having adopted measures that were merely ineffective. We have considered plaintiffs other arguments and find them unavailing. Concur — Andrias, J.P., Nardelli, McGuire, Moskowitz and Renwick, JJ.

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Bluebook (online)

55 A.D.3d 356, 865 N.Y.S.2d 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-consolidated-edison-co-of-new-york-inc-nyappdiv-2008.

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