Opinion
2001-10725, 2001-10728
Argued January 13, 2003.
February 4, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from a decision of the Supreme Court, Queens County (Kitzes, J.), dated October 15, 2001, and (2), as limited by their brief, from so much of a judgment of the same court, entered November 5, 2001, as, upon granting the motion of the defendant City of New York pursuant to CPLR 4401 to dismiss the complaint insofar as asserted against it at the close of the plaintiffs' evidence, is in favor of the defendant City of New York and against them, dismissing the complaint insofar as asserted against that defendant.
Purcell Ingrao, P.C., Mineola, N.Y. (Ralph P. Franco, Jr., of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Jane L. Gordon of counsel; Amy Barcelo on the brief), for respondent.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
ORDERED that the judgment is affirmed insofar as appealed from; and it is further,
ORDERED that the respondent is awarded one bill of costs.
The injured plaintiff, Edward A. Clapp, alleged that he slipped and fell on a patch of ice which had formed as a result of a snowstorm several days before the date of the accident.
Viewing the evidence in the light most favorable to the plaintiffs and resolving all issues of credibility in their favor (cf. Lipsius v. White, 91 A.D.2d 271, 276-277), we find that the Supreme Court properly dismissed the complaint at the close of their case insofar as asserted against the City of New York (see Wines v. City of New York, 283 A.D.2d 639; Davis v. City of New York, 255 A.D.2d 356; Grillo v. New York City Tr. Auth., 214 A.D.2d 648; cf. Shivers v. Price Bottom Stores, 289 A.D.2d 389). The climatological data submitted by the City revealed that the temperatures on each of the four days preceding the accident never dropped below freezing. In view of this documented intervening thaw, the plaintiff failed to establish that the ice patch on which he allegedly fell was the result of the earlier snowstorm.
SANTUCCI, J.P., KRAUSMAN, ADAMS and CRANE, JJ., concur.