Schlam v. City of New York

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered March 19, 1969 in favor of defendant upon a jury verdict after trial on the issues of liability only. Judgment reversed, on the law, and new trial on the issues of liability only granted, with costs to abide the event. The findings of fact below are affirmed. Upon alighting from a bus, plaintiff was injured when her foot went into a broken curb of a sidewalk, causing her to fall. The proof was undisputed that defendant, the City of New York, had actual notice of the defective condition and ample time to remedy it. The issue of notice, therefore, should not have been submitted to the jury and the refusal of the trial court to charge, as requested, that as a matter of law the city had actual and constructive notice of the condition where plaintiff fell constituted prejudicial error requiring a new trial (cf. Crane v. New York World Tel. Corp., 308 N. Y. 470 , 479 — 480). We are also of the opinion that, under the circumstances, prejudicial error was also committed in admitting into the evidence a notice which the city had sent to the abutting owner to repair the curbing. Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.