Procida v. City of New York

Motion by appellant for reargument of appeal and to modify order of this court dated March 13, 1970. Motion granted. Decision (34 A D 2d 556) amended to read as follows: “ In a negligence action to recover damages for personal injuries, defendant City of New York appeals from a judgment of the Supreme Court, Kings County, as amended by,an order of said court entered May 8, 1967, in favor of plaintiff against it, upon a jury verdict, and dismissing its cross complaint against defendant Tomasetti,' upon the decision of the trial court. Amended judgment modified, on the law and the facts, (1) by striking therefrom the decretal paragraph which is in. plaintiff’s favor against the defendant City of New York and substituting therefor a provision that plaintiff’s complaint as against said defendant is dismissed; and (2) by adding, at the end of the decretal provision thereof which dismissed the cross complaint of the defendant City of New York against defendant Tomasetti, the following: ‘without prejudice’. As so modified, amended judgment affirmed, without costs. In our opinion, the evidence presented was insufficient upon which to base an inference that the defendant City of New York had notice, either actual or constructive, of the dangerous condition (see Olsen v. City of New York, 30 A D 2d 812; McDermot v. City of New York, 287 F. 2d 49, 50). In view of our determination herein in favor of appellant against plaintiff, the portion of the amended judgment which dismissed appellant’s cross complaint against defendant Tomasetti should not be disturbed, except to the extent of adding thereto the words ‘ without prejudice ’.” Order of this court dated March 13, 1970 amended accordingly. Christ, P. J., Munder, Martuscello and Kleinfeld, JJ., concur.