You are here: / / FAILURE TO ADDRESS THE CREATION-OF-THE-DEFECT THEORY OF RECOVERY REQUIRED...
,

FAILURE TO ADDRESS THE CREATION-OF-THE-DEFECT THEORY OF RECOVERY REQUIRED DENIAL OF DEFENDANT-VILLAGE’S SUMMARY JUDGMENT MOTION.

The Second Department, in this slip and fall case, determined that the village’s failure to address plaintiff’s allegation that the village created the dangerous condition (a one-inch higher portion of a sidewalk) required the denial of the village’s motion for summary judgment. [Another example of a defense summary judgment motion which did not affirmatively address every possible theory of recovery.] The court explained the relevant law:

 

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . The bill of particulars alleged that the Village affirmatively created the dangerous condition which caused the accident. Therefore, in order to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, both that it did not have prior written notice of the defect, and that it did not create the defect … . The Village established, prima facie, that it did not have prior written notice of the defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect … . Therefore, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. McManus v Klein, 2016 NY Slip Op 00704, 2nd Dept 2-3-16

 

NEGLIGENCE (LIABILITY ALLEGED UNDER COMMON-LAW NEGLIGENCE  AND RES IPSA LOQUITUR, DEFENDANT’S FAILURE TO ADDRESS EVERY ELEMENT OF THOSE THEORIES REQUIRED DENIAL OF SUMMARY JUDGMENT)/RES IPSA LOQUITUR (DEFENDANT’S FAILURE TO ADDRESS EVERY ELEMENT RES IPSA LOQUITUR THEORY OF RECOVERY RREQUIRED DENIAL OF SUMMARY JUDGMENT)

You might also like
Under the Circumstances, the Filing of a Family Offense Petition Against the Father and the Issuance of an Order of Protection Made the Children Dependent on a Juvenile Court, a Prerequisite for Special Immigrant Juvenile Status
NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF FUNDS  HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED.
Passenger in Car of Which Plaintiff Lost Control in Snowy Conditions Entitled to Summary Judgment
THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS BASED ON HEARSAY; THE SECOND MORTGAGE WAS NOT DEMONSTRATED TO MEET THE REQUIRMENTS OF RPAPL 1351 (SECOND DEPT).
LEASE PROVISION ALLOWING THE COLLECTION OF RENT AFTER EVICTION BY SUMMARY PROCEEDINGS VALID AND ENFORCEABLE.
QUESTION OF FACT WHETHER PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE OR REPAIR COVERED BY LABOR LAW 240 (1) WHEN HE FELL FROM A LADDER 2ND DEPT.
YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT).
Procedure for Handling a Motion to Dismiss for Failure to State a Cause of Action When Documentary Evidence Is Submitted in Support of the Motion Explained—Attorney Discharged For Cause Is Not Entitled to “Quantum Meruit” Attorney’s Fees

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

EXPERT AFFIDAVITS, SUBMITTED SOLELY ON THE ISSUE OF PROXIMATE CAUSE OF PLAINTIFF’S... BROKER NOT ENTITLED TO COMMISSION, MOTION TO SET ASIDE PLAINTIFF’S VERDICT...