Lodato v. Town of Oyster Bay
| Decision Date | 12 March 1979 |
| Citation | 68 A.D.2d 904,414 N.Y.S.2d 214 |
| Parties | Sally LODATO, Respondent, v. TOWN OF OYSTER BAY, Defendant, and Richard Bohner, Appellant (and a third-party action). |
| Court | New York Supreme Court — Appellate Division |
A. Paul Goldblum, Brooklyn, for appellant.
Fine & Kilgannon, Mineola (Frank X. Kilgannon, New York City, of counsel), for respondent.
Before RABIN, J. P., and SHAPIRO, COHALAN and MARTUSCELLO, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, defendant Richard Bohner appeals from an interlocutory judgment of the Supreme Court, Nassau County (SAMENGA, J.), dated July 17, 1978, which is in favor of plaintiff and against him, after a jury trial limited to the issue of liability only.
Interlocutory judgment reversed, on the law, and complaint dismissed, with costs.
As the plaintiff walked on the sidewalk abutting the premises owned by defendant Bohner, she tripped over an elevated flag of concrete and fell, injuring herself. The evidence adduced at the trial showed only that defendant Bohner saw to it that the walk was swept and cleared of snow and that the areas of grass abutting the walk were mowed. It appeared that the concrete flag became elevated as a result of upward pressure of an adjacent tree root; however, no cause was actually proven. The Town of Oyster Bay maintained the trees and the County of Nassau maintained the street. It was not proven that defendant Bohner did anything to cause the condition complained of. Under these circumstances, plaintiff failed to make out a prima facie case against defendant Bohner (see City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937; Jacques v. Maratskey, 41 A.D.2d 883, 342 N.Y.S.2d 871; 26 N.Y.Jur., Highways, Streets, and Bridges, §§ 363-365). Accordingly, the complaint must be dismissed.
We note with disapproval that the trial court instructed the jurors as to the contents of an ordinance of the Town of Oyster Bay which imposes the duty of care and repair of sidewalks upon abutting landowners, but which does not impose any tort liability upon such persons for their failure to comply with the ordinance. That ordinance had no application to this case and the court so noted in its charge. In addition, we would also point out that when the attorney for defendant Bohner continually objected to a line of questioning followed by plaintiff's counsel, intended, obviously, to elicit from defendant Bohner, called as plaintiff's...
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