Carafas v. City of New York

Full title: ALBERT CARAFAS, Respondent, v. CITY OF NEW YORK, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Sep 29, 1959

9 A.D.2d 619 (N.Y. App. Div. 1959)

Opinion

September 29, 1959

Appeal from the Supreme Court, New York County.

Judgment affirmed, with costs to the respondent.

VALENTE, J. (dissenting).

I dissent, and would reverse the judgment and dismiss the complaint.

Where the case was tried by the court without a jury, we should, on appeal, enter the judgment that the trial court should have granted. (Civ. Prac. Act, § 584, subd. 2; Greater N.Y. Ins. Co. v. Perry, 6 A.D.2d 432, 437; Calabria v. City Suburban Homes Co., 5 A.D.2d 983, affd. 5 N.Y.2d 918.) Ordinarily, the credibility of witnesses is for the trial court, but where, as here, the testimony concerning the manner of the occurrence of the accident is not only vague and indefinite and so highly improbable, and the testimony as to the period of time of the existence of the alleged defect is so unreliable, "we are not required to give credence to a story so inherently improbable that we are morally certain it is not true." ( Bottalico v. City of New York, 281 App. Div. 339, 341.)

Botein, P.J., Breitel, M.M. Frank and Stevens, JJ., concur in decision; Valente, J., dissents and votes to reverse and dismiss.

Judgment affirmed, with costs to the respondent.