Hecht v. City of New York

Judgment-, Supreme Court, New York County (Dier, J.), entered November 24, 1980, granting plaintiff judgment against the City of New York and Square Depew Garage Corp. in the amount of $50,547.50, reversed, on the law, and vacated, and the complaint is dismissed, without costs. In this negligence action there was no showing that an actionable defect in the sidewalk existed. Without any evidence to support such a finding it was legal error to permit the jury to consider whether either defendant had had constructive notice and an obligation to repair. {Cohen v Hallmark Cards, 45 NY2d 493, 499.) Since we see no purpose in sending this case back for a new trial, we exercise our statutory power (CPLR 5522) and reverse the judgment and dismiss the complaint. {Jones v Kent, 35 AD2d 622; Millens & Sons v Vladich, 28 AD2d 1045, affd 23 NY2d 998; compare Flores v Bliss Co., 18 AD2d 1058.) Although only the city prosecuted an appeal, the whole of the judgment is before us (CPLR 5501) and our disposition necessarily 525 effects a dismissal as to the garage defendant as well. (Cf. Arnold v District Council No. 9, Int. Brotherhood of Painters & Allied Trades, 61 AD2d 748, 749; Statella v Chuckrow Constr. Co., 28 AD2d 669; Boice v Jones, 106 App Div 547, 548; CPLR 5520; compare Segar v Youngs, 45 NY2d 568, 572-573; 7 Weinstein-Korn-Miller, NY Civ Prac, pars 5522.07, 5522.03.) The motion, submitted in conjunction with this appeal, is dismissed as moot in light of our disposition of the appeal. Concur — Carro, Silverman and Asch, JJ. Murphy, P. J., dissents in part and Kupferman, J., dissents in a memoranda as follows: