Blake v. City of Albany

• Decision Date: 29 November 1979
• Docket Number: No. 1,No. 2,No. 3,1,2,3
• Citation: Blake v. City of Albany, 424 N.Y.S.2d 358, 48 N.Y.2d 875, 400 N.E.2d 300 (N.Y. 1979)
• Parties: , 400 N.E.2d 300 Mary BLAKE, Respondent-Appellant, v. CITY OF ALBANY, Appellant-Respondent. (Action) Mary BLAKE, Appellant, v. NIAGARA MOHAWK POWER CORP., Defendant and Third-Party Plaintiff-Respondent. UTEC Constructors, Inc., et al., Third-Party Defendants-Respondents. (Action) Mary BLAKE, Appellant, v. UTEC CONSTRUCTORS, INC., et al., Respondents. (Action)
• Court: New York Court of Appeals Court of Appeals

Page 358

424 N.Y.S.2d 358

48 N.Y.2d 875, 400 N.E.2d 300

Mary BLAKE, Respondent-Appellant, v. CITY OF ALBANY, Appellant-Respondent. (Action No. 1.)

Mary BLAKE, Appellant, v. NIAGARA MOHAWK POWER CORP., Defendant and Third-Party

Plaintiff-Respondent. UTEC Constructors, Inc., et

al., Third-Party Defendants-Respondents.

(Action No. 2.)

Mary BLAKE, Appellant, v. UTEC CONSTRUCTORS, INC., et al., Respondents. (Action No. 3.)

Court of Appeals of New York.

Nov. 29, 1979.

Martin Brickman, Albany, for plaintiff-appellant.

John E. Roe, Corp. Counsel, Albany (Joseph V. Zumbo, Albany, of counsel), for defendant-appellant.

James M. Conboy, Albany, for Niagara Mohawk Power Corp., respondent.

William M. O'Hare, for UTEC Constructors, Inc., respondent.

Myron Komar, Albany, for Weber Construction Co., respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The city having withdrawn any reliance on its Local Law No. 1 (1953) on the argument of this appeal, the issues essentially are reduced to two: (1) Was the evidence connecting Weber and, through it, Niagara Mohawk and UTEC with the accident sufficient to support verdicts against them? and (2) Was there enough proof that the city had notice of the defect on which to ground the finding that it was liable?

As to the first issue, as the case was presented, any liability on the part of Niagara Mohawk, UTEC or Weber hung on whether there was proof of the latter's erection of the particular roadway blockade which diverted the plaintiff. Yet, the record contains no proof that it had done so. True, Weber had been working at Trinity Place for some months prior to the accident, during which time it had cordoned off the excavation site, but the uncontradicted testimony was that its activities there had ceased well in advance of plaintiff's arrival on the scene and that, by then, at least two other contractors, Hanson Plumbing and Heating and Fane Construction Company, neither of whom was named as a defendant, had undertaken work in that area pursuant to permits granted directly to them by the city. In this context, the mere fact that a Rolling machine bearing Weber's name was seen in the general vicinity of the accident two days after it took place was not enough by and unto itself to establish that the Barricades plaintiff found in the roadway were either owned or placed there by that defendant. In all, the evidence on which negligence on the part of these defendants could be grounded, at best, was speculative. It follows that the case against them stands properly dismissed (Kelly v. Otis Elevator Co., 283 App.Div....