Opinion
November 2, 1967
Judgment for defendant unanimously affirmed, with $50 costs and disbursements to respondent. In this action against the city to recover for personal injuries resulting from a fall upon a sidewalk, there was no proof of actual notice to the city of the very small hole which caught the heel of plaintiff's shoe. Also, as a matter of law, the evidence in the record as to the nature and size of the alleged hole and the length of time of its existence is not sufficient to support a finding that defendant was chargeable with constructive notice of its existence and thereby subjected to a duty of repair. Where, as here, "the defect is so slight that no careful or prudent man would reasonably anticipate any danger from its existence but, still, an accident happens which could have been guarded against by the exercise of extraordinary care and foresight, the question of the defendant's responsibility is one of law." ( Beltz v. City of Yonkers, 148 N.Y. 67, 70.)
Concur — Eager, J.P., Steuer, Tilzer, McNally and McGivern, JJ.