Heeney v. Topping

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, 290 619 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.