Zapin v. Israel

285 A.D. 968, 138 N.Y.S.2d 675, 1955 N.Y. App. Div. LEXIS 6323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1955
• Status: Published

Opinion

In an action to recover damages sustained by the infant plaintiff, and by his father for medical expenses and loss of services, the complaint was dismissed at the close of plaintiffs’ case. It appeared that the parents of the infant plaintiff were tenants in defendant’s multiple dwelling. While playing alone in the back yard appurtenant to the premises, the infant plaintiff found an umbrella rib or spoke, pushed it into the ground in the yard, whereupon it snapped in half and went into his right eye. Judgment unanimously affirmed, without costs. There is no proof of violation of subdivision 1 of section 80 of the Multiple Dwelling Law because there was no proof of notice, actual or constructive, to defendant of the presence of the umbrella rib or spoke before the accident. The spoke was not a structure maintained by defendant in connection with its premises, nor was there proof that defendant placed the spoke in the yard, nor that it had notice thereof, nor that the umbrella spoke or rib was an inherently or potentially dangerous instrumentality. (Di Biase v. Ewart & Lake, 228 App. Div. 407, affd. 255 N. Y. 620; Clark v. City of Buffalo, 288 N. Y. 62.) Present — MacCrate, Acting P. J., Schmidt, Beldock, Murphy and Ughetta, JJ.