Rinder v. City of New York

258 A.D. 1063, 17 N.Y.S.2d 744, 1940 N.Y. App. Div. LEXIS 8898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1940
• Status: Published

Opinion

In an action for damages for personal injuries sustained by plaintiff by reason of the alleged negligence of the defendant in failing to maintain a sidewalk in a reasonably safe condition, whereby plaintiff slipped upon snow and ice and fell, judgment for defendant dismissing the complaint on plaintiff’s opening at the trial reversed on the law, and a new trial granted, with costs to appellant to abide the event. The complaint contains allegations which, if sustained by proof accredited by the jury, would excuse plaintiff’s failure to file notice of intention to sue and to commence his action within the prescribed time limitations. There is nothing in the opening of counsel on behalf of plaintiff whereby facts were conceded of a nature which established that plaintiff was physically able to comply with the statutes prior to the time that he attempted to do so, allowing a reasonable time within which to do so after physical incapacity. Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ., concur.