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O'Boyle v. Sun Luck East, Inc.

Appellate Division of the Supreme Court of New York, First Department
Jan 22, 1974
43 A.D.2d 822 (N.Y. App. Div. 1974)

Opinion

January 22, 1974


Judgment, Supreme Court, New York County, entered on March 20, 1972, unanimously modified, on the law, to the extent of reversing and vacating the judgment against defendant-appellant, and dismissing the complaint as to defendant-appellant, without costs and without disbursements. Plaintiff sustained a fractured ankle when he was accidentally bumped on the sidewalk in front of the defendant restaurant, which caused him to lose his balance and fall down a staircase leading to the basement of the building owned by defendant-appellant. The jury found for the plaintiff against the defendant-appellant landlord, but in favor of the restaurant. It is axiomatic, as stated in Palsgraf v. Long Island R.R. Co. ( 248 N.Y. 339, 344), that the "risk reasonably to be perceived defines the duty to be obeyed". The basement staircase involved in the case at bar did not encroach on the public sidewalk. There are many such staircases in the city. The landlord could not reasonably anticipate that someone would jolt another in the street, as a result of which he would fall down the stairs. There being no proximate cause, Rivera v. City of New York ( 11 N.Y.2d 856, 857), the complaint should be dismissed. If we did not dismiss, we would order a new trial on the ground that section C26-226.0 of the Administrative Code of the City of New York which relates to basement stairways that do encroach on a public way, was read to the jury without adequate explanation that it had only a negative application as being the only code section with respect to basement stairways and did not apply to the stairway involved in the case at bar. The jury could have been confused as to the purpose of the reading of the section.

Concur — Kupferman, J.P., Steuer, Tilzer and Lane, JJ.


Summaries of

O'Boyle v. Sun Luck East, Inc.

Appellate Division of the Supreme Court of New York, First Department
Jan 22, 1974
43 A.D.2d 822 (N.Y. App. Div. 1974)
Case details for

O'Boyle v. Sun Luck East, Inc.

Case Details

Full title:JOHN J. O'BOYLE, Respondent, v. SUN LUCK EAST, INC., Defendant, and 55TH…

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

Date published: Jan 22, 1974

Citations

43 A.D.2d 822 (N.Y. App. Div. 1974)