Mascaro v. State of New York

Full title: MARY MASCARO et al., Appellants, v. STATE OF NEW YORK, Respondent. (Claim…

Court: Court of Appeals of the State of New York

Date published: Feb 10, 1976

38 N.Y.2d 870 (N.Y. 1976)

382 N.Y.S.2d 742

346 N.E.2d 543

Opinion

Argued January 8, 1976

Decided February 10, 1976

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JOSEPH MODUGNO, J.

Ira M. Hariton for appellants.

Louis J. Lefkowitz, Attorney-General (Douglas L. Manley and Ruth Kessler Toch of counsel), for respondent.

MEMORANDUM.

There was insufficient proof in this case on which to posit a finding that there was a duty on the part of the State to maintain the curb in issue here. Accordingly, we affirm the order of the Appellate Division. Our disposition makes it unnecessary to decide between the Court of Claims' and the Appellate Division's findings of fact on the issues of negligence and notice.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

Order affirmed, with costs, in a memorandum.