Rudolph v. Annunziata

In an action to recover damages for personal injuries, defendant appeals from a judgment of the City Court of Mount "Vernon, entered November 20, 1961 after trial upon the jury’s verdict of $2,000 in favor of plaintiff. Judgment reversed on the law and the facts, without costs, and complaint dismissed on the law. The record establishes that plaintiff was a pedestrian who used defendant’s gasoline station as a short-cut passageway. The record does not establish that, in the conduct of its business, defendant serviced other than motorized customers. Under such circumstances plaintiff is deemed as a matter of law to be a licensee. As such, she may not complain of a mere defect in the condition of defendant’s premises (see Mendelowitz v. Neisner, 258 N. Y. 181). Ughetta, Acting P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.