decided: April 10, 1969.
STUART WEINER, AN INFANT, BY HIS GUARDIAN AD LITEM, MILDRED WEINER, ET AL., RESPONDENTS,
SERPS AUTO WRECKERS, INC., ET AL., APPELLANTS
Weiner v. Serps Auto Wreckers, 29 A.D.2d 682, modified.
Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating, Breitel and Jasen concur.
Memorandum. The judgment appealed from should be modified by directing a new trial as to defendant City of New York, with costs to abide the event; and otherwise affirmed, with costs to plaintiffs against defendants Serps Auto Wreckers, Inc. and Simon. The liability of the city depends entirely on the acceptance of defendant Simon's testimony that a hole in the pavement caused the breaking away of the car he was towing and the consequent injury to plaintiff Stuart Weiner. None of the several statements made by Simon to police immediately after the accident makes any reference to a condition of the road as a factor in the breaking away of the towed car and at least one disclaims a hole in the street as a causative factor. The case is thus a very close one on the city's liability. The notice of claim, pleading and bill of particulars, placing the purported defective condition of the street some 200 feet away from where plaintiff's proof on the trial placed it, were misleading to the city in preparation of its defense. Proof of repairs after the accident on the site of the purported defect was inadmissible and did not become so on the basis of a photograph offered by the city of another part of the street, the part specified in the notice of claim. These errors become significant in view of the closeness of the case on the merits of the city's responsibility.
Judgment modified by directing a new trial as to defendant City of New York, with costs to abide the event, and, as so modified, affirmed, with costs to plaintiffs against defendants Serps Auto Wreckers, Inc. and Simon in accordance with the memorandum herein.
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