Hecht v. City of New York

• Decision Date: 15 July 1982
• Citation: 452 N.Y.S.2d 443,89 A.D.2d 524
• Parties: Estelle HECHT, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant, and SQUARE DEPEW GARAGE CORP., Defendant-Respondent and Third-Party Plaintiff, v. CUNEO CONSTRUCTION CORP., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 443

452 N.Y.S.2d 443

89 A.D.2d 524

Estelle HECHT, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant, and SQUARE DEPEW GARAGE CORP., Defendant-Respondent and Third-Party Plaintiff, v. CUNEO CONSTRUCTION CORP., Third-Party Defendant.

Supreme Court, Appellate Division,

First Department.

July 15, 1982.

D. D. Glass, New York City, for plaintiff-respondent.

F. S. Plimpton, New York City, for defendant-appellant.

M. Majewski, New York City, for third-party plaintiff.

Before MURPHY, P. J., and KUPFERMAN, CARRO, SILVERMAN and ASCH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, entered November 24, 1980 granting plaintiff judgment against the City of New York and Square Depew Garage Corp. in the amount of $50,547.50, reversed on the law and vacated, and the complaint is dismissed, without costs.

In this negligence action there was no showing that an actionable defect in the sidewalk existed. Without any evidence to support such a finding it was legal error to permit the jury to consider whether either defendant had had constructive notice and an obligation to repair. Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145. Since we see no purpose in sending this case back for a new trial, we exercise our statutory power (CPLR 5522) and reverse the judgment and dismiss the complaint. Jones v. Kent, 35 A.D.2d 622, 312 N.Y.S.2d 728; B. Millens & Sons v. Vladich, 28 A.D.2d 1045, 283 N.Y.S.2d 809, aff'd 23 N.Y.2d 998, 298 N.Y.S.2d 1002, 246 N.E.2d 760. Compare Flores v. E. W. Bliss, 18 A.D.2d 1058, 239 N.Y.S.2d 1. Although only the City prosecuted an appeal, the whole of the judgment is before us (CPLR 5501) and our disposition necessarily effects a dismissal as to the garage defendant as well. Cf. Arnold v. District Council No. 9, 61 A.D.2d 748, 749, 401 N.Y.S.2d 811; Statella v. Robert Chuckrow Constr. Co., 28 A.D.2d 669, 281 N.Y.S.2d 215; Boice v. Jones, 106 App.Div. 547, 548, 94 N.Y.S. 896; CPLR 5520. Compare Segar v. Youngs, 45 N.Y.2d 568, 572-573, 410 N.Y.S.2d 801, 383 N.E.2d 103; Weinstein-Korn-Miller Par. 5522.07, Par. 5522.03.

The motion, submitted in conjunction with this appeal, is dismissed as moot in light of our disposition of the appeal.

All concur except MURPHY, P. J., who dissents in part and KUPFERMAN, J., who dissents in memoranda as follows:

MURPHY, Presiding Justice (dissenting in part).

I agree that there was no actionable defect in the sidewalk and I would dismiss the case against the appealing defendant, the City of New York. However, this reversal does not inure to the benefit of the non-appealing defendant, Square Depew Garage Corp. (Segar v. Youngs, 45 N.Y.2d 568, 572, 573, 410 N.Y.S.2d 801, 383 N.E.2d 103; San Lucas v. Bornn & Co., 173 App.Div. 703, 708, 160 N.Y.S. 131, aff'd 225 N.Y. 717, 122 N.E. 890; 4 N.Y.Jur.2d, Appellate Review, § 485, p. 625.) In view of the dismissal against the City, Square Depew shall be held 100% responsible for the $50,000 verdict in plaintiff's favor.

The judgment of the Supreme Court, New York County, entered November 24, 1980, awarding plaintiff recovery upon a $50,000 verdict with the City and Square Depew held 50% responsible, should be modified, on the law and the facts, the action against the City should be dismissed, and Square Depew should be held 100% liable on the verdict, and, as modified, the judgment should be affirmed.

KUPFERMAN, Justice (dissenting).

The plaintiff sues for personal injuries arising from a fall on a sidewalk on the south side of 52nd Street between Sixth and Seventh Avenues, in the Borough of Manhattan, in front of a garage owned and operated by the defendant, Square Depew Garage Corp. The jury verdict was in favor of the plaintiff in the amount of $50,000. The issue before us is liability and the allocation as between the garage and the City of New York.

The proof of the defective sidewalk consisted of photographs showing a lateral separation between flagstones of approximately one inch or more and a noticeable difference in the elevation of the...