Opinion
August 1, 1961
Appeals from a judgment of the Supreme Court in Delaware County and from an order denying defendants' motions to set aside verdicts for plaintiffs in a negligence action predicated upon defendant village's alleged negligence in the construction in 1932 of a portion of sidewalk and curb resulting in the accumulation of ice in a depressed area; and upon defendant corporation's alleged negligent omission, after undertaking to clear the sidewalk abutting its premises, to remove the ice theretofore accumulated, thereby, according to plaintiffs' theory, causing a condition constituting "a trap and additional hazard" in that elsewhere the sidewalk was clear. Concededly, the village did not have written notice of the condition alleged and could be held liable only for affirmative negligence. Such was not shown by plaintiff husband's testimony that at the time of the accident the curb was an inch or two higher than the sidewalk nor by that of the village engineer that there were "spots" lower than the curb and that the walk "is sunk at varying distances up to an inch and three-quarters". Neither were plaintiffs aided by the testimony of a retired village employee who first said that the curb "wasn't high enough" and then that "it was up and down", none of this testimony being with specific reference to the point of the accident, and who, when questioned as to that particular area, said that it "was level at one time, but I don't know what it is right now", that it was level when it was put in but it "buckled up * * * quite awhile ago." There seems to us no evidence of any affirmative negligence on the part of the village. The record is also barren of proof of negligence on the part of the corporate defendant. There is no showing that its acts increased the existing hazard, and thus recovery must be denied, as in Spicehandler v. City of New York ( 279 App. Div. 755, 756, affd. 303 N.Y. 946) in which defendant "although removing snow and ice from the sidewalk on several occasions * * * failed to remove all snow and ice", and in Herrick v. Grand Union Co. ( 1 A.D.2d 911), in which it was "not shown that the shoveling or scraping of the loose snow actually made the existing mass of ice and snow any more slippery or hazardous than it had been". Plaintiffs rely on Greenberg v. Woolworth Co. ( 18 Misc.2d 141, 143, affd. 10 A.D.2d 567) but there "the rough and ridged ice was caused by the defendant's porter" who left patches of ice " which he had hacked and permitted to remain and freeze". (Emphasis supplied.) Judgment and order unanimously reversed, on the law and the facts, and complaint dismissed, without costs. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.