Auletta v. City of New York — 22 N.Y.2d 738

Majority

p. 738

Louise Auletta et al., Respondents, v. City of New York et al., Defendants, and Gerald Schwartz, Appellant.

Argued May 15, 1968;

decided June 5, 1968.

p. 739

E. Edan Spencer and Walter Feller for appellant.

Marvin George Florman and Edward Pious for respondents.

Plaintiff failed to prove that defendant, by clearing off a 3 or 4-foot path abutting his building line, created an unreasonably dangerous condition for pedestrians which proximately led to plaintiff’s accident. Clearing off the path resulted in the creation of a snow bank which stood approximately 8 inches above the natural snowfall. This snow bank, however, presented no foreseeable risk to pedestrians. Defendant’s office was located next to a driveway, which was apparently unobstructed, except by natural snowfall, at the time of the accident. Defendant had no reason to anticipate that a pedestrian would attempt to cross the snow bank in front of his office, in view of the immediately adjoining, unobstructed driveway. He was under no duty to clear off the entire sidewalk, which was 25 to 30 feet wide, merely in order to avoid creating a snow bank which posed no foreseeable threat to most pedestrians.

p. 740

The order appealed from should he reversed and the complaint dismissed, with costs.

Chief Judge Fulo and Judges Scileppi, Bergan, Breitel and Jasen concur; Judges Burke and Keating dissent in part and vote to grant a new trial.

Order reversed, etc.