Phillips v. 630 McKinley Square Corp.

285 A.D. 18, 135 N.Y.S.2d 272

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1954
• Status: Published

Opinions

Per Curiam.

Recovery here is claimed to be justified by the fact that the sidewalk had been painted and was slippery when wet by rain. The paint had been applied long before the accident and was thoroughly dry and somewhat worn. No proof was adduced to establish that the paint was in anywise defective or contained improper materials or had been improperly applied. To hold abutting owners and the city liable in such state of facts would be to impose an intolerable burden.

If this judgment is affirmed, the mere painting of the curb of sidewalks, to mark the stoppage places of buses could, on wet days, give occasion to numerous causes of action on which recovery could be had against the city and against the bus companies. All that plaintiff established basically was that the painted sidewalk was slippery when wet by rain, and that was due to the rain that was falling at the time, for which defendants were not responsible.

On the state of facts disclosed, we think plaintiff failed to establish actionable negligence against defendant, the abutting owner or against the city.

As plaintiff failed to establish actionable negligence against the abutting owner, it is unnecessary to pass upon the issue involving indemnity against the abutting owner in favor of the city.

The judgment entered on the verdict of the trial court sitting without a jury should be reversed, with one bill of costs to defendants-appellants and the complaint dismissed, with costs.