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EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION.

The First Department determined defendants’ summary judgment motion in this slip and fall case was properly denied. Although there was a snow storm in progress at the time of the fall, there was evidence plaintiff slipped on a sheet of ice which, because the temperature was well below freezing, could not have formed during the storm:

Here, as plaintiffs concede, there was a storm in progress at the time of the accident. Thus, the burden shifted to plaintiffs to demonstrate the existence of a triable issue of fact as to whether Sterling created or exacerbated the hazardous condition through its snow removal activities. Plaintiffs have met that burden, as they have both testified that they saw an ice patch at the scene of the accident. * * * This evidence supports plaintiffs’ argument that ice could not have formed after the snowclearing efforts by [defendant’s] employees. Accordingly, an issue of fact was raised as to whether [defendant’s] actions created or exacerbated a hazardous condition by employing a snowblower to remove snow without taking further steps to de-ice the sidewalk … . Baumann v Dawn Liquors, Inc., 2017 NY Slip Op 01986, 1st Dept 3-21-17

NEGLIGENCE (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)/SLIP AND FALL (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)/STORM IN PROGRESS DOCTRINE (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)/SIDEWALKS (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)

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SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO THE CLUB AND THE SECURITY COMPANY IN THIS THIRD PARTY ASSAULT CASE; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE CLUB COULD BE HELD RESPONSIBLE FOR CRIMINAL ACTIVITY IN THE STREET IN FRONT OF THE CLUB, WHETHER THE CLUB WAS THE SPECIAL EMPLOYER OF THE BOUNCERS AND THEREFORE SUBJECT TO VICARIOUS LIABILITY, AND WHETHER THERE WAS DRAM SHOP ACT LIABILITY (FIRST DEPT). ​
“Sole Proximate Cause” Defense Not Demonstrated
ALTHOUGH PLAINTIFF ALLEGED FRAUDULENT INDUCEMENT, THE ESSENCE OF THE LAWSUIT IS THE ALLEGED BREACH OF THE CONTRACTS; THIS IS NOT A CASE WHERE IT IS ALLEGED THE FRAUDULENT INDUCEMENT NULLIFIED THE CONTRACTS; THEREFORE THE JURY-TRIAL WAIVER PROVISIONS REMAIN ENFORCEABLE (FIRST DEPT). ​
ABSENT AMBIGUITY A COURT CAN NOT CONSIDER EXTRINSIC EVIDENCE TO INTERPRET A CONTRACT; HERE PLAINTIFF HAD BROUGHT TWO ACTIONS AGAINST THE CITY CHALLENGING TWO SEPARATE ARRESTS; THERE WAS NO INDICATION THE RELEASE ONLY APPLIED TO THE ACTION DESCRIBED IN THE CAPTION OF THE RELEASE; THE SPACE FOR DESCRIBING ANY ACTION TO BE EXCLUDED FROM THE RELEASE WAS LEFT BLANK; THEREFORE THE RELEASE APPLIED TO BOTH ACTIONS; THERE WAS A DISSENT (FIRST DEPT).
QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT.
INSTALLING WINDOW SHADES IS NOT ‘ALTERING’ WITHIN THE MEANING OF LABOR LAW 240 (1) AND WAS NOT PART OF THE GENERAL CONTRACTOR’S RESPONSIBILITIES (FIRST DEPT).
THE CONTRACT WAS BETWEEN CORPORATIONS IN DIFFERENT STATES, THEREFORE INTERSTATE COMMERCE WAS IMPLICATED AND THE FEDERAL ARBITRATION ACT (FAA) APPLIED; THE CONTRACT PROPERLY PROVIDED THAT THE ARBIRTRATOR, NOT A COURT, WILL DECIDE GATEWAY ISSUES OF ARBITRABILITY (FIRST DEPT).
WHERE FRAUD IS THE BASIS OF A CLAIM FOR BREACH OF FIDUCIARY DUTY, THE STATUTE OF LIMITATIONS IS SIX YEARS (FIRST DEPT).

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