Mirabilio v. Incorporated Village of Valley Stream

In a negligence action to recover damages for personal injuries, medical expenses and loss of services, the defendant, Incorporated Village of Valley Stream, appeals, by permission of the Appellate Term of the Supreme Court, from an order of that court, dated November 24, 1961, unanimously affirming a judgment of the District Court of *958 the County of Nassau, First District, rendered April 10, 1961 after a jury trial in favor of the plaintiff wife for $1,500 and in favor of the plaintiff husband for $71. Order and judgment reversed, on the law and the facts, without costs, and complaint dismissed on the law as indicated herein. Plaintiff wife testified that on December 13, 1957, while she was walking on a sidewalk in front of a Woolworth store in the Incorporated Village of Valley Stream, she tripped on something and was caused to fall, sustaining injuries. Although there were patches of slush on the sidewalk, the evidence establishes that the sidewalk was merely wet at the place where said plaintiff fell. At the time of the accident, she was carrying bundles, large and small, and a poeketbook; she did not know what caused her to trip. However, upon viewing the sidewalk some six days later, she saw an unevenness between two of its concrete portions, and concluded that such defect caused her to trip. In our opinion, the evidence is insufficient to sustain the finding or to establish prima facie that the plaintiff wife’s injuries were the result of her tripping upon the uneven concrete (cf. Doria v. Village of Mamaroneck, 12 A D 2d 952). Beldock, P. J., Ughetta, Brennan, Rabin and Hopkins, JJ., concur.