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Olivia v. Gouze

Supreme Court of New York, Appellate Division

May 10, 1955

Olivia
v.
Gouze

Page 763

APPEALS from a judgment of the Supreme Court entered December 15, 1953, in New York County, upon a verdict rendered at a Trial Term (BENVENGA, J.) insofar as said judgment was in favor of plaintiff and against all defendants. The judgment was amended by an order of said court entered January 8, 1954. Defendants Arthur Gouze et al., and defendant Clearbrook Food Shop, Inc., also appeal from that part of said judgment by which the trial court granted a motion of defendant City of New York for judgment on the city's cross claim against them. Defendants Gouze also appeal from that part of said judgment by which the trial court dismissed their cross claim against defendant Clearbrook Food Shop, Inc.

COUNSEL

Alexander E. Rosenthal of counsel (Irving Segal, attorney), for appellants.

Fred Iscol of counsel (Seymour B. Quel with him on the brief; Peter Campbell Brown, Corporation Counsel, attorney), for City of New York, appellant-respondent.

Joseph F. Lenihan of counsel (Frederick Mellor, attorney), for Clearbrook Food Shop, Inc., appellant-respondent.

Edward V. Whiting for respondent.

COHN, J.

This action is for personal injuries against defendants Gouze, who are the owners of a multiple dwelling, the City of New York (hereafter referred to as City) and Clearbrook Food Shop, Inc. (hereafter referred to as Clearbrook), tenant of a grocery store in the multiple dwelling.

After a trial, the jury rendered a verdict in favor of plaintiff against the three defendants. The trial court thereafter decreed judgment over in favor of the City against defendants

Page 764

Gouze and Clearbrook on the City's cross complaint against them, and dismissed the cross complaint of defendants Gouze against Clearbrook. All defendants appeal from the judgment entered in favor of plaintiff against them. Defendants Gouze and Clearbrook appeal from the judgment in favor of the City on its cross claim, and defendants Gouze appeal from the dismissal of their cross claim against Clearbrook.

Defendants Gouze were the owners of a building on the corner of Amsterdam Avenue and West 159th Street, in New York City. An iron grating extended out from the building line to a width of four feet. At the edge of this grating and along its entire length was a stone coping or curbing one foot in width and elevated one to two inches above the level of the main sidewalk. A wooden ramp or platform placed on top of the iron grating on Amsterdam Avenue and about the width of the doorway of the grocery store of Clearbrook was used for ingress to, and egress from, the store. Plaintiff claimed that the accident for which she has recovered occurred when on leaving the store she caught her heel and fell on a broken portion of the stone coping which supported the iron grating adjacent to the entrance to the store. The break in the coping was about four feet from the ramp that led into the store. It was a broken piece about seven or eight inches in length, three or four inches in width, and about one and one-half inches deep.

The evidence is undisputed that the grating in the sidewalk was a means of supplying light and air to the subsurface vault and the adjacent basements, and that the basements, to which access could be had only by way of the cellar door on Amsterdam Avenue, and an areaway on 159th Street were used by Clearbrook for the storage of merchandise and other purposes connected with the conduct of the grocery. The coping on which plaintiff fell, so it was testified, was necessary to the construction and maintenance of the grating. The coping was described as a cap over the retaining wall of the vault which kept the adjacent sidewalk from falling and also served to prevent dirt and rain water from entering the subvault space.

Where a cross complaint is interposed as in this case, the court is required to weigh the factual delinquencies of the parties involved. (Tipaldi v. Riverside Memorial Chapel, 273 App.Div. 414, 418, affd. 298 N.Y. 686; McFall ...


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