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Question of Fact Raised—Tennis Player Injured Stepping on Plastic Bottle at Edge of Court​

In playing tennis on defendant’s court, plaintiff, when back-pedaling to reach the ball, was injured when he stepped on a plastic water bottle which was behind a curtain separating the court from an adjacent wall.  In reversing Supreme Court’s grant of summary judgment to the defendant [Lifeplex], the Second Department determined Lifeplex had not demonstrated (1) it did not create the defective condition, (2) it did not have constructive notice of the condition, (3) plaintiff was injured in the playing area, and (4) whether the condition was concealed:

Here, Lifeplex failed to eliminate triable issues of fact as to whether the condition that allegedly caused the plaintiff’s injury was within the playing area of the tennis court, and whether the condition was concealed. Thus, Lifeplex failed to make a prima facie showing that the plaintiff assumed a risk inherent in the sport of tennis ….  Moreover, in moving for summary judgment dismissing the complaint, Lifeplex had the initial burden of establishing “that it neither created nor had actual or constructive notice of the allegedly defective condition that caused the accident”…. . “To meet its initial burden on the issue of . . . constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell”…. Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice… .  Herman v Lifeplex, LLC, 2013 NY slip Op 03815, 2nd Dept, 5-29-13

ASSUMPTION OF THE RISK

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ALTHOUGH PLAINTIFF WAS STRUCK IN THE ON-COMING LANE WHILE ATTEMPTING A LEFT TURN IN AN INTERSECTION, THERE WERE QUESTIONS OF FACT WHETHER DEFENDANT SHOULD HAVE SEEN THE PLAINTIFF (SECOND DEPT).
ABSENT “EXTRAORDINARY CIRCUMSTANCES,” A JUDGE DOES NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS A COMPLAINT (SECOND DEPT). ​
PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE (SECOND DEPT).
HERE A SINGLE INCIDENT OF ALLEGED EXCESSIVE CORPORAL PUNISHMENT (GRABBING THE CHILD’S ARM AND SQUEEZING TIGHTLY) WAS NOT SUFFICIENT TO SUPPORT THE NEGLECT FINDING; A NEGLECT FINDING CANNOT BE BASED UPON ALLEGATIONS NOT INCLUDED IN THE PETITION (SECOND DEPT).
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