Sirk v. Central Lanes, Inc.

— In a negligence action to recover damages for personal injuries, etc., defendant appeals from a judgment of the Supreme Court, Westchester County, dated April 3, 1969, in favor of plaintiffs, upon a jury verdict. Judgment affirmed, with costs. No opinion. Christ, Acting P. J., Rabin, Hopkins and Munder, JJ., concur; Martuscello, J., dissents and votes to reverse the judgment and dismiss the complaint on the ground that plaintiffs failed to establish a prima facie case. The evidence indicated that snow had fallen for several days prior to the accident as well as on the morning of the accident. The temperature remained below freezing for several days prior to the accident. The female plaintiff was injured when she fell in defendant’s driveway. After she fell, she noticed that the covering of snow had been brushed away and that she was sitting atop a bumpy area of dark ice. Defendant had employed a snow plow operator who testified he had plowed the driveway on the morning of the accident. I am of the opinion that, under the circumstances, defendant could not have corrected the icy condition and thus plaintiffs failed to establish a prima facie ease.