
    Sylvia Lipinsky, as Administratrix of the Estate of Lucy German, Deceased, Plaintiff, v. City of New York, Defendant.
    Supreme Court, Trial Term, New York County,
    October 1, 1957.
    
      Biorris Honig and Jerome Golenbeck for plaintiff.
    
      Peter Campbell Brown, Corporation Counsel (Jerome Wonder of counsel), for defendant.
   Felix O. Benvenga, J.

This is an action to recover damages for personal injuries and death of plaintiff’s intestate, resulting from the negligence of the defendant in maintaining the sidewalk and curbing at the intersection of Second Avenue and East Fifth Street, Manhattan.

The evidence shows the existence, at the place of the alleged accident, of a separation in the metal nosing or curbing of about an inch and a difference in elevation of about three fourths of an inch. It do not believe that the defect is of such a character as to impose liability, or of such a nature that a reasonably prudent person should have foreseen the probability of an accident from its existence (Clemmons v. Cominskey, 1 A D 2d 933, affd. 2 N Y 2d 958; Foster v. City of New York, N. Y. L. J., July 15, 1957, p. 3, col. 2). The case of Styler v. City of New York (303 N. Y. 843), upon which plaintiff relies, is distinguishable. There, the separation in the curbing was about two inches wide at top and three quarters of an inch deep and extended for the entire width of the curb. There was also evidence that a city inspector had examined the curbing prior to the accident and directed that it be repaired.

Here, there is no evidence of actual notice and the evidence of constructive notice is unreliable. And since the defect is of such a minor character, I feel that plaintiff’s intestate, a 65-year-old woman, was caused to fall, not because of the alleged defect, but rather because of a fainting spell or stroke due to a coronary condition from which she had been suffering. It is well settled that where the facts proven show that there are several possible causes of an injury, for one or more of which defendant is not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have recovery, since she has failed to prove that the defendant’s negligence caused the injury (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1, 7, and cases cited).

Judgment is therefore directed for the defendant dismissing the complaint.  