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Question of Fact Raised About Whether Snow-Removal Contractor Created or Exacerbated the Dangerous Condition

The Second Department affirmed the denial of summary judgment to a snow-removal contractor (SCS) in a slip and fall case.  The plaintiff fell on a mound of snow between the street and a sidewalk. The court explained:

A contractor may be held liable for injuries to a third party where, in undertaking to render services, the contractor entirely displaces the duty of the property owner to maintain the premises in a safe condition, the injured party relies on the contractor’s continued performance under the agreement, or the contractor negligently creates or exacerbates a dangerous condition … . SCS demonstrated its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it … by demonstrating that the injured plaintiff was not a party to the snow and ice removal contract, and that it did not owe a duty to him … . In opposition, however, the plaintiffs raised a triable issue of fact as to whether SCS’s alleged negligence created or exacerbated the hazard which was a proximate cause of the accident… . LaGuarina v Metropolitan Trans Auth, 2013 NY Slip Op 05800, 2nd Dept 9-11-13

 

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PLAINTIFF-PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; ALTHOUGH A PLAINTIFF NEED NOT DEMONSTRATE THE ABSENCE OF COMPARATIVE NEGLIGENCE IN SUPPORT OF SUMMARY JUDGMENT, THE COURT CAN CONSIDER COMPARATIVE NEGLIGENCE WHERE, AS HERE, THE PLAINTIFF MOVES TO DISMISS THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).
THE CITY ALLOWED THE LOT TO BE USED FOR COMMUNITY GARDENS BUT NEVER UNEQUIVOCALLY DEDICATED THE LOT AS PARKLAND, THEREFORE THE PUBLIC TRUST DOCTRINE DID NOT APPLY AND THE CITY CAN DEVELOP THE LAND (SECOND DEPT).
MOTHER’S INCONSISTENT STATEMENTS AND EVASIVE TESTIMONY DID NOT AMOUNT TO “FRIVOLOUS CONDUCT” WARRANTING THE AWARD OF ATTORNEY’S FEES AS A SANCTION (SECOND DEPT).
MOTIONS TO QUASH SUBPOENAS ISSUED IN SUPPORT OF OBJECTIONS TO AN ACCOUNTING OF A TRUST SHOULD NOT HAVE BEEN GRANTED; COUNSEL’S SUBMISSION OF EMAILS DEMONSTRATING A GOOD FAITH EFFORT TO SETTLE WERE SUFFICIENT (SECOND DEPT).
Action for Fraud Cannot Be Based on Same Facts as Breach of Contract; Fraud Must Be Pled in Detail
SIDEWALK DAMAGE CAUSED BY TREE ROOTS DOES NOT CONSTITUTE AFFIRMATIVE NEGLIGENCE BY THE CITY; THEREFORE THE CITY’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
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