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“Open and Obvious” Nature of Defect Does Not Negate Duty to Keep Premises Safe.

Plaintiff brought a Labor Law and common law negligence action based upon the allegation that a 1 1/2 inch depression in a marble step at the Buffalo City Hall caused him to slip.  At the time of the accident, plaintiff was employed by a subcontractor which had been hired by defendant company.  The defendant company claimed on appeal that its duty to maintain the premises in a safe condition was obviated by the open and obvious defect in the stair.  The Fourth Department noted that the fact that the defect was “open and obvious” speaks only to plaintiff’s comparative negligence, and does not negate the defendant’s duty to keep the premises reasonably safe.  The Fourth Department went on to hold that the defendant company “failed to establish as a matter of law that the hazard posed by the stair was open and obvious and that they had no duty to warn plaintiff of that tripping hazard.”  Landahl v City of Buffalo and U & S Services, Inc., 1333, CA 12-01208 Fourth Dept. 2-1-13

 

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ALTHOUGH THE ARTICLE 78 PETITION WAS VERIFIED BY AN ATTORNEY, THE VERIFICATION WAS VALID BECAUSE THE ATTORNEY HAD FIRST-HAND KNOWLEDGE OF THE FACTS; IN ADDITION, ANY DEFECTS IN THE VERIFICATION WERE WAIVED BY RESPONDENTS; PRIOR ARBITRATION PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT WAS NOT AN OBSTACLE TO THE PETITION ALLEGING A VIOLATION OF THE EDUCATION LAW CONCERNING THE SUSPENSION OF A SCHOOL PRINCIPAL (FOURTH DEPT).
PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT).
SELF-SERVING AFFIDAVIT FROM DEFENDANT DID NOT REBUT THE PRESUMPTION OF THE VALIDITY OF THE SERVICE OF PROCESS (FOURTH DEPT).
DEFENDANT WAS NOT IN CUSTODY WHEN HIS STATEMENTS WERE MADE, SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
OUT-OF-POSSESSION LANDLORD DEMONSTRATED IT WAS NOT RESPONSIBLE FOR REPAIR OF THE DANGEROUS CONDITION; LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
THE JUDGE DID NOT FOLLOW THE REQUIRED PROCEDURE FOR FINDING NEGLECT ON A GROUND NOT ALLEGED IN THE PETITION; TO DO SO, THE JUDGE MUST AMEND THE ALLEGATIONS IN THE PETITION TO CONFORM TO THE PROOF AND GIVE THE RESPONDENT TIME TO RESPOND TO THE AMENDED ALLEGATIONS; NEITHER WAS DONE; PETITION DISMISSED (FOURTH DEPT).
NON-SOLICITATION AGREEMENT WAS THE PRODUCT OF OVERREACHING AND WILL NOT BE ENFORCED (FOURTH DEPT).
Court’s Failure to Inquire Further When It Was Not Clear Defendant’s Plea Was Knowing and Voluntary Required Vacation of Plea

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