You are here: / / No Constructive Notice of Icy Condition/Allegation Defendant Created the...

No Constructive Notice of Icy Condition/Allegation Defendant Created the Condition Based on Speculation

The First Department, over a dissent, affirmed the grant of summary judgment to the defendant in a slip and fall case. Plaintiff alleged she slipped and fell on a thin sheet of ice in a plaza in front of defendant’s building.  Defendant demonstrated that the area had been inspected an hour before the accident and no ice was visible.  Plaintiff acknowledged she could not see the ice.  Plaintiff’s allegation that defendant created the dangerous condition by running a fountain which was the source of a wind-borne spray of water on the plaza was deemed too speculative:

The evidence submitted by defendant, including security logs, establishes that defendant’s employees routinely inspected the area where plaintiff fell, had conducted an inspection one hour prior to her accident, and did not observe any ice. In opposition and in support of her cross motion, plaintiff failed to provide evidence showing that the ice was discernable.

On appeal, plaintiff does not dispute defendant’s lack of actual notice of ice on the plaza, having conceded, at her examination before trial, that it was not visible. She testified that although conditions at about 9:30 a.m. were bright and clear, it “looked like a thin layer of ice that wasn’t noticeable enough for me to see it before I fell.” Thus, the record establishes that the hazardous condition was not “visible and apparent” so as to enable defendant’s employees to discover it and take remedial measures… . Tompa v 767 Fifth Partners LLC, 2014 NY Slip Op 00276, 1st Dept 1-16-14

 

You might also like
COMPLAINT ALLEGING FRAUD AND RELATED CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, CERTAIN CLAIMS WERE NOT TIME-BARRED AND PLAINTIFF’S RELIANCE UPON MISREPRESENTATIONS WAS SUFFICIENTLY ALLEGED (FIRST DEPT).
EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT).
Whether the “Assault and Battery” Exclusion from Coverage Pertained to an Arson Is a Question of Fact Which Depends Upon the Motives of the Arsonist
Failure to Call Treating Physician Allowed Negative Inference in Case Alleging Mother Incapable of Caring for Child by Reason of Mental Illness
New York City Administrative Code Imposing a $2000 Fine for Removal Recyclable Material from Curb Violated Excessive-Fines Clauses​
​EMOTIONAL AND PSYCHOLOGICAL DAMAGES, AS OPPOSED TO PECUNIARY DAMAGES, WILL NOT SUPPORT AN ACTION FOR BREACH OF FIDUCIARY DUTY (FIRST DEPT). ​
PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AS THE PREVAILING PARTY BECAUSE THE POLICE DEPARTMENT TURNED OVER THE REQUESTED BODY CAM VIDEOS VOLUNTARILY WHILE THE PROCEEDING WAS PENDING; THE RESPONDENTS HAD NO REASONABLE BASIS FOR DENYING THE REQUEST (FIRST DEPT).
OUT-OF-POSSESSION LANDLORD CAN BE LIABLE UNDER LABOR LAW 240 AND 241.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

In a Slip and Fall Case, the Flawed Constructive-Notice Jury Instruction Required... Attorney Conflict Waiver Criteria Discussed/Whether Molineux Analysis Should...