Rivera v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MARTUSCELLO
• Citation: Rivera v. City of New York, 331 N.Y.S.2d 784, 39 A.D.2d 606 (N.Y. App. Div. 1972)
• Decision Date: 24 April 1972
• Parties: Ernesto RIVERA, etc., et al., Appellants, v. The CITY OF NEW YORK, Respondent.

Page 784

331 N.Y.S.2d 784

39 A.D.2d 606

Ernesto RIVERA, etc., et al., Appellants, v. The CITY OF NEW YORK, Respondent.

Supreme Court, Appellate Division, Second Department.

April 24, 1972.

Before MUNDER, Acting P.J., and SHAPIRO, BRENNAN, BENJAMIN and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In a ngeligence action to recover damages for personal injuries, loss of services and medical expenses, plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered November 2, 1970, which dismissed the complaint after a nonjury trial, upon the issues of liability only, the case having been submitted to the trial court, by stipulation, on the evidence adduced at a prior trial.

Judgment affirmed, without costs (Roberto v. City of New York, 35 A.D.2d 782, 315 N.Y.S.2d 819, mot. for lv. to app. den. 27 N.Y.2d 489, 318 N.Y.S.2d 1026, 267 N.E.2d 281).

MUNDER, Acting P.J., and SHAPIRO, BRENNAN and BENJAMIN, JJ., concur.

MARTUSCELLO, J., dissents and votes to reverse the judgment and grant a new trial, with the following memorandum:

In this action to recover for personal injuries sustained by the eight-year-old infant plaintiff, the complaint was dismissed after a nonjury trial upon the evidence adduced at a prior jury trial which had resulted in a disagreement of the jury. The ground of the dismissal was that, as a matter of law, no actionable negligence on the part of defendant, the City of New York, had been established. The majority of this court agrees with that conclusion. I do not and therefore dissent and vote for a new trial.

The infant plaintiff was riding his bicycle on a public sidewalk when the front wheel went into a hole, catapulting him over the handle bars. The photographs in evidence show the hole to be large, deep and irregular in shape.

We are not here concerned with contributory negligence, the only question arising by reason of the trial court's ruling, in dismissing the complaint, that 'a municipality is bound only to keept its sidewalks in a reasonably safe condition for their ordinary use, and that no negligence is chargeable to the city in this type of an accident.'

In Intintoli v. Pierre Pellaton Apts., Inc., 35 A.D.2d 993, 317 N.Y.S.2d 1016, affd. 30 N.Y.2d 548, 330 N.Y.S.2d 610, 281 N.E.2d 554 (dec. Feb. 10, 1972)) the Court of Appeals permitted a recovery for the plaintiff against the defendant abutting property owner to stand on a record which showed that a 13-year-old plaintiff had sustained injuries while...