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Triable Issues of Fact Re: Whether Property Owner Liable for Allowing Third Parties to Operate Remote Control Cars On Its Parking Lot—Motorcyclist Injured When Attempting to Avoid a Remote Controlled Car

The Second Department determined summary judgment was properly denied to the property owner (Farmingdale) which was aware its  parking lot was being used for radio remote control cars.  Plaintiff alleged he was injured when he tried to avoid a remote control car while riding his motorcycle:

“A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others” … . However, “[t]his duty [only] arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so” … . A property owner cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience ” that there is a likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor'” … .

Under the circumstances here, Farmingdale failed to eliminate all triable issues of fact as to whether it had the knowledge, authority, or opportunity to control the conduct of the third parties operating the radio remote control cars in the subject parking lot, and as to whether the conduct of the third parties in the parking lot posed a reasonably foreseeable risk of harm to others … . Tiranno v Warthog Inc, 2014 NY Slip Op 05322, 2nd Dept 7-16-14

 

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THE J.H.O./REFEREE WAS NOT AUTHORIZED BY CPLR 3104 OR ANY ORDER ISSUED BY THE COURT TO CONSIDER AN ALLEGED DEFICIENCY IN THE AMENDED BILL OF PARTICULARS; THE ISSUE PRESENTED A QUESTION OF LAW WHICH COULD NOT HAVE BEEN AVOIDED BELOW, THEREFORE IT MAY BE RAISED FOR THE FIRST TIME ON APPEAL; ORDER STRIKING THE COMPLAINT VACATED (SECOND DEPT).
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IT IS PROPER TO MAKE PARTICIPATION IN COUNSELING A COMPONENT OF A PARENTAL ACCESS ORDER, BUT IT IS IMPROPER TO CONDITION A FUTURE APPLICATION FOR PARENTAL ACCESS ON PARTICIPATION IN COUNSELING (SECOND DEPT).
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