Scally v. State

Appellate Division of the Supreme Court of New York

Scally v. State

26 A.D.2d 606, 271 N.Y.S.2d 386, 1966 N.Y. App. Div. LEXIS 3874

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

DecidedJune 28, 1966

DocketClaim No. 40797

StatusPublished

Cited by5 cases

This text of 26 A.D.2d 606 (Scally v. State) 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

Scally v. State, 26 A.D.2d 606, 271 N.Y.S.2d 386, 1966 N.Y. App. Div. LEXIS 3874 (N.Y. Ct. App. 1966).

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Opinion

Reynolds, J.

Appeal by the State from a judgment of the Court of Claims awarding respondent $5,708.90 for personal injuries. On the afternoon of April 23, 1962 as respondent, then 77 years old, was walking on a sidewalk adjacent to State Highway 27A, the main street of the unincorporated community of Bay Shore, Town of Islip, Suffolk County, she stepped aside to let a woman pushing a baby carriage pass and in doing so caught her toe on a protruding corner of a metal covering to a drainage culvert as a result of which she fell and broke her hip. The corner in question protruded, by respondent’s own admission, not in excess of % of an inch. On the present record we find that the defect complained of was so trivial and slight in nature [607]*607and possessed none of the characteristics of a trap or snare so that it could not reasonably have been foreseen that it would cause an accident and thus that liability could not be predicated thereon (Dowd v. City of Buffalo, 263 App. Div. 932, affd. 290 N. Y. 895; Fleming v. Fifth Ave. Coach Lines, 23 A D 2d 726, mot. for lv. to app. den. 16 N Y 2d 485; Brannigan v. City of Plattsburgh, 3 A D 2d 637; Lynch v. City of Beacon, 269 App. Div. 757, affd. 295 N. Y. 872; Goetz v. City of New York, 205 Misc. 1001). Accordingly, we do not reach the issue of whether the State was responsible for the maintenance of the sidewalk in question. Judgment reversed, on the law and the facts, and claim dismissed, without costs. Gibson, P. J., Herlihy, Taylor and Aulisi, JJ., concur.

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Reynolds, J.

Appeal by the State from a judgment of the Court of Claims awarding respondent $5,708.90 for personal injuries. On the afternoon of April 23, 1962 as respondent, then 77 years old, was walking on a sidewalk adjacent to State Highway 27A, the main street of the unincorporated community of Bay Shore, Town of Islip, Suffolk County, she stepped aside to let a woman pushing a baby carriage pass and in doing so caught her toe on a protruding corner of a metal covering to a drainage culvert as a result of which she fell and broke her hip. The corner in question protruded, by respondent’s own admission, not in excess of % of an inch. On the present record we find that the defect complained of was so trivial and slight in nature [607]*607and possessed none of the characteristics of a trap or snare so that it could not reasonably have been foreseen that it would cause an accident and thus that liability could not be predicated thereon (Dowd v. City of Buffalo, 263 App. Div. 932, affd. 290 N. Y. 895; Fleming v. Fifth Ave. Coach Lines, 23 A D 2d 726, mot. for lv. to app. den. 16 N Y 2d 485; Brannigan v. City of Plattsburgh, 3 A D 2d 637; Lynch v. City of Beacon, 269 App. Div. 757, affd. 295 N. Y. 872; Goetz v. City of New York, 205 Misc. 1001). Accordingly, we do not reach the issue of whether the State was responsible for the maintenance of the sidewalk in question. Judgment reversed, on the law and the facts, and claim dismissed, without costs. Gibson, P. J., Herlihy, Taylor and Aulisi, JJ., concur.

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Bluebook (online)

26 A.D.2d 606, 271 N.Y.S.2d 386, 1966 N.Y. App. Div. LEXIS 3874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scally-v-state-nyappdiv-1966.

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