Opinion
284 A.D. 1045 135 N.Y.S.2d 597 SYLVIA GLASSMAN et al., Appellants-Respondents, v. CITY OF NEW YORK, Respondent, and AR-RAY REALTY CORPORATION, Appellant. Supreme Court of New York, Second Department. December 6, 1954
In an action by plaintiff Sylvia Glassman to recover damages for personal injuries sustained when she slipped and fell because of snow and ice on the sidewalk in front of premises owned by defendant the Ar-Ray Realty Corporation, and by her husband for medical and other expenses incurred by reason thereof, defendant the Ar-Ray Realty Corporation appeals from the judgment in favor of plaintiffs against it, and in favor of defendant City of New York against the plaintiffs. Plaintiffs appeal from so much of the judgment as is in favor of the City of New York against them. On the appeal by defendant the Ar-Ray Realty Corporation from that part of the judgment which is in favor of plaintiffs against it, judgment insofar as appealed from reversed on the law and the facts, with costs, and complaint dismissed, with costs. There is no evidence that said appellant was an active tort-feasor in causing the ice and snow on which plaintiff wife fell to be present on the sidewalk. At most, the evidence shows that said appellant, although removing snow and ice from the sidewalk following snowfalls in the period between the storm of December 26, 1947, and the date of the accident, January 28, 1948, failed to remove all the snow and ice. ( Kelly v. Rose, 291 N.Y. 611; Hendley v. Daw Drug Co., 293 N.Y. 790; Zysk v. City of New York, 300 N.Y. 507; Spicehandler v. City of New York, 279 A.D. 755, affd. 303 N.Y. 946.) If the complaint were not being dismissed, a new trial would be granted on the ground that the verdict is against the weight of the credible evidence, insofar as it imports a finding that the dangerous condition was created by said appellant. On appeal by defendant the Ar-Ray Realty Corporation from that part of the judgment which is in favor of defendant City of New York, appeal dismissed, without costs. (Bensaude v. Flomarcy Co., 293 N.Y. 656; Nekris v. Yellen, 302 N.Y. 626; Farrington v. 4 to 12 Water St., Bklyn., 269 A.D. 903, motion for leave to appeal denied 295 N.Y. 988.) On appeal by plaintiffs from that portion of the judgment which is in favor of defendant City of New York, judgment insofar as appealed from affirmed, without costs. No opinion. Nolan, P. J., Adel and Schmidt, JJ., concur; Beldock and Murphy, JJ., concur in the affirmance of the judgment insofar as it is in favor of defendant City of New York and against plaintiffs, and in the dismissal of the appeal of defendant the Ar-Ray Realty Corporation from the judgment insofar as it is in favor of defendant City of New York and against plaintiffs, but dissent as to the reversal of the judgment and the dismissal of the complaint insofar as said judgment is in favor of plaintiffs and against defendant the Ar-Ray Realty Corporation, and vote to affirm that part of the judgment, with the following memorandum: The proof was sufficient to permit the inference that the ice on the sidewalk had formed from melting snow piled up by the abutting owner along the pathway. Under such circumstances liability may be imposed. ( Zahn v. City of New York, 274 A.D. 807, affd. 299 N.Y. 581.)