Stelzner v. First Avenue & Seventeenth Street Corp.

Appellate Division of the Supreme Court of New York

Stelzner v. First Avenue & Seventeenth Street Corp.

15 A.D.2d 741, 224 N.Y.S.2d 151, 1962 N.Y. App. Div. LEXIS 11655

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

DecidedFebruary 6, 1962

StatusPublished

This text of 15 A.D.2d 741 (Stelzner v. First Avenue & Seventeenth Street Corp.) 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

Stelzner v. First Avenue & Seventeenth Street Corp., 15 A.D.2d 741, 224 N.Y.S.2d 151, 1962 N.Y. App. Div. LEXIS 11655 (N.Y. Ct. App. 1962).

Pincite

Opinion

The plaintiffs sue for damages sustained as a result of the collapse of defendant’s chimney. We believe there are questions of fact presented which require a trial for their resolution. While the affidavit submitted in opposition to the motion is less than satisfactory, containing, as it does, conclusions rather than factual allegations, the motion still must be denied. It is quite apparent that the chimney was defective and that the defendant had notice of such condition. However, no liability can attach unless it is shown that the defendant knew and should have known that such condition was a dangerous one and that the defendant did not act with reasonable expedition to cure the defect. The defendant did take some steps toward the repair of the defective chimney. Whether it took adequate measures with sufficient expedition is a question for the jury. Concur — Botein, P. J., Rabin, Valente and Eager, JJ.; Stevens, J., dissents and votes to affirm on the ground that on this record there is no question of fact as to defendant’s liability.

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The plaintiffs sue for damages sustained as a result of the collapse of defendant’s chimney. We believe there are questions of fact presented which require a trial for their resolution. While the affidavit submitted in opposition to the motion is less than satisfactory, containing, as it does, conclusions rather than factual allegations, the motion still must be denied. It is quite apparent that the chimney was defective and that the defendant had notice of such condition. However, no liability can attach unless it is shown that the defendant knew and should have known that such condition was a dangerous one and that the defendant did not act with reasonable expedition to cure the defect. The defendant did take some steps toward the repair of the defective chimney. Whether it took adequate measures with sufficient expedition is a question for the jury. Concur — Botein, P. J., Rabin, Valente and Eager, JJ.; Stevens, J., dissents and votes to affirm on the ground that on this record there is no question of fact as to defendant’s liability.

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Bluebook (online)

15 A.D.2d 741, 224 N.Y.S.2d 151, 1962 N.Y. App. Div. LEXIS 11655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stelzner-v-first-avenue-seventeenth-street-corp-nyappdiv-1962.