Heeney v. Topping

• Decision Date: 06 December 1962
• Citation: 18 A.D.2d 618,234 N.Y.S.2d 724
• Parties: Christopher F. HEENEY, Plaintiff-Respondent, v. Dan TOPPING and Del Webb, co-partners, doing business as New York Yankees and River Operating Co., Inc., and Yankee Stadium Corporation, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 724

234 N.Y.S.2d 724

18 A.D.2d 618

Christopher F. HEENEY, Plaintiff-Respondent, v. Dan TOPPING and Del Webb, co-partners, doing business as New York Yankees and River Operating Co., Inc., and Yankee Stadium Corporation, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 6, 1962.

L. E. Cuff, Garden City, for defendant-appellants.

E. J. Bloustein, New York City, for plaintiff-respondent.

Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and STEVENS, JJ.

PER CURIAM.

Judgment in favor of plaintiff for $48,224.33 reversed, on the law and on the facts, with costs to defendants-appellants, the verdict vacated, and the complaint dismissed. in this personal injury negligence action plaintiff failed to establish actionable negligence. The protruding repair of a concrete fissure, about an inch high, consisting of an asphaltlike material, otherwise smooth, did not create a foreseeable hazard to users of the baseball stadium (Dowd v. City of Buffalo, 290 N.Y. 895, 50 N.E.2d 297; Clemmons v. Commiskey, 2 N.Y.2d 958, 162 N.Y.S.2d 360, 142 N.E.2d 645 affg. 1 A.D.2d 933, 149 N.Y.S.2d 559, 1 A.D.2d 934, 150 N.Y.S.2d 577). On this view, plaintiff failed to establish a prima facie case. In any event, were it necessary to reach the question, the verdict in favor of plaintiff was against the weight of the credible evidence, and a new trial on that ground would have been required (Brannigan v. City of Plattsburgh, 3 A.D.2d 637, 157 N.Y.S.2d 1017 a case involving a defect more grave than here involved; Liebl v. Metropolitan Jockey Club, 10 A.D.2d 1006, 204 N.Y.S.2d 670). Settle order on notice.