Stanton v. Gasport View Dairy Farm, Inc.

• Decision Date: 15 November 1995
• Citation: 635 N.Y.S.2d 560,221 A.D.2d 1000
• Parties: Edwin C. STANTON, Plaintiff, and Joanne Stanton, Appellant, v. GASPORT VIEW DAIRY FARM, INC., and Roger White, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 560

635 N.Y.S.2d 560

221 A.D.2d 1000

Edwin C. STANTON, Plaintiff, and Joanne Stanton, Appellant, v. GASPORT VIEW DAIRY FARM, INC., and Roger White, Respondents.

Supreme Court of New York, Appellate Division,

Fourth Department.

Nov. 15, 1995.

Muscato, Di Millo & Vona by George Muscato, Lockport, for appellants.

Grosse, Rossetti, Chelus and Herdzik, P.C. by Arthur Herdzik, Buffalo, for respondents.

MEMORANDUM:

Supreme Court erred in concluding that mud is not included within the scope of Vehicle and Traffic Law § 1219 (see, People v. Bunton, 128 Misc.2d 162, 488 N.Y.S.2d 988; see also, Nielsen v. City of New York, 38 A.D.2d 592, 328 N.Y.S.2d 698, appeal dismissed 30 N.Y.2d 568, 330 N.Y.S.2d 787, 281 N.E.2d 837). The court further erred in holding that the quantity and source of the mud were not at issue in this case. Plaintiffs presented proof of excessive mud and Deputy Sheehan testified that the muddy conditions were caused by defendant farm. Thus, the court erred in precluding plaintiffs from completing their proof with respect to mud and in refusing to present that issue to the jury. Therefore, plaintiff Joanne Stanton is entitled to a new trial.

Judgment unanimously reversed on the law without costs and new trial granted. (Appeal from Judgment of Supreme Court, Niagara County, Mintz, J.--Negligence.)

PINE, J.P., and LAWTON, WESLEY, CALLAHAN and DOERR, JJ., concur.