Bierman v. Consolidated Edison Co. of New York

• Decision Date: 14 May 1970
• Citation: 320 N.Y.S.2d 331,66 Misc.2d 237
• Parties: Jean BIERMAN, Plaintiff-Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, Inc., and the City of New York, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Term

Page 331

320 N.Y.S.2d 331

66 Misc.2d 237

Jean BIERMAN, Plaintiff-Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, Inc., and the City of New York, Defendants-Appellants.

Supreme Court, Appellate Term, First Department.

May 14, 1970.

John M. Keegan and J. Bruce Byrne, New York City, for Consolidated Edison Co. of New York, appellant.

J. Lee Rankin, Corp. Counsel (Stanley Buchsbaum and Bernard Burstein, New York City, of counsel), for City of New York, appellant.

Marttie Louis Thompson and David A. Diamond, New York City, for respondent.

Before QUINN, J.P., and LUPIANO and STREIT, JJ.

PER CURIAM:

It being the mandate of the statute Civil Court Act, § 1804) that the rules of substantive law are applicable to the Small Claims Court, the court below erred in departing from the traditional rules of negligence and in adopting a rule of strict liability without fault. Stability and certainty in the law requires adherence to precedents by courts of original jurisdiction, and the decisions of the Court of Appeals must be followed by all lower courts (Brooks v. Horning, 27 A.D.2d 874, 875, 876, 278 N.Y.S.2d 629, 632--634; MacGilfrey v. Hotaling, 26 A.D.2d 977, 274 N.Y.S.2d 850; Canter v. American Cyanamid Co., 12 A.D.2d 691, 207 N.Y.S.2d 745; Thomas v. Hendrickson, 30 A.D.2d 730, 731, 291 N.Y.S.2d 57, 58--59; 1 Carmody-Wait N.Y. Practice 2nd, § 2:50, § 2:58). If a rule of strict liability is to be adopted, the pronouncement should come from the Legislature or the Court of Appeals, and not from a court of original jurisdiction.

There being no proof of negligence on the part of the defendant Consolidated Edison Company, the judgment should be reversed as to it and the complaint against it dismissed.

With respect to the claim against the defendant City of New York, we find, contrary to the decision below, that there was sufficient proof of its negligence to sustain a recovery against it. The proof of a burst water main permitted an inference that the damage was due to the negligence of the City (George Foltis, Inc. v. City of New York, 287 N.Y. 108, 118, 38 N.E.2d 455, 461). While it is true that the court was not compelled to draw that inference, there appears no reason for declining to do so. Therefore, in the absence of any evidence on the part of the City, judgment should have been rendered against it. While the court below found otherwise on this issue, it is within our province to review the facts (CPLR 5501(d)), and, in a non-jury case, to...