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Heeney v. Topping

Appellate Division of the Supreme Court of New York, First Department
Dec 6, 1962
18 A.D.2d 618 (N.Y. App. Div. 1962)

Opinion

December 6, 1962


Judgment in favor of plaintiff for $48,224.33 reversed, on the law and on the facts, with costs to defendants-appellants, the verdict vacated, and the complaint dismissed. In this personal injury negligence action plaintiff failed to establish actionable negligence. The protruding repair of a concrete fissure, about an inch high, consisting of an asphalt-like material, otherwise smooth, did not create a foreseeable hazard to users of the baseball stadium ( Dowd v. City of Buffalo, 290 N.Y. 895; Clemmons v. Commiskey, 2 N.Y.2d 958, affg. 1 A.D.2d 933, 1 A.D.2d 934). On this view, plaintiff failed to establish a prima facie case. In any event, were it necessary to reach the question, the verdict in favor of plaintiff was against the weight of the credible evidence, and a new trial on that ground would have been required ( Brannigan v. City of Plattsburgh, 3 A.D.2d 637, a case involving a defect more grave than here involved; Liebl v. Metropolitan Jockey Club, 10 A.D.2d 1006). Settle order on notice.

Concur — Botein, P.J., Breitel, Valente, McNally and Stevens, JJ.


Summaries of

Heeney v. Topping

Appellate Division of the Supreme Court of New York, First Department
Dec 6, 1962
18 A.D.2d 618 (N.Y. App. Div. 1962)
Case details for

Heeney v. Topping

Case Details

Full title:CHRISTOPHER F. HEENEY, Respondent, v. DAN TOPPING et al., Copartners Doing…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 6, 1962

Citations

18 A.D.2d 618 (N.Y. App. Div. 1962)
234 N.Y.S.2d 724

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