Opinion
June 30, 1970
Appeal from a judgment of the Supreme Court, Franklin County, entered upon a verdict in favor of the respondent. On February 21, 1965 respondent, a 50 year old tenant in appellant's building, fell, sustaining a serious fracture, on an allegedly rutty driveway, controlled by appellant, which supplied a means of ingress and egress to her apartment. The instant record reveals evidence from which the jury could conclude that the condition of the driveway on February 21, 1965 was dangerous and hazardous, that the condition subsisted for a sufficient time so that appellant be deemed to have constructive notice of its existence and to have had ample time to remedy it (34 N.Y. Jur., Landlord and Tenant, § 464; Doyle v. Streifer, 34 A.D.2d 183) and that the hazardous condition was the proximate cause of appellant's injury. We find no prejudice sufficient to warrant a reversal and a new trial in the fact three jurors inadvertently viewed three inadmissible photographs of the rutty road. The attempt by respondent's counsel to get before the jury subsequent repairs and other evidence connected thereto, was improper conduct and is not in the least condoned. We would reverse on this ground except for the fact that the trial court immediately sustained the objection by appellant's counsel and firmly instructed the jury to disregard the offered proof, before it was specifically connected with the driveway. Judgment affirmed, without costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Reynolds, J.