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You are here: Home1 / Municipal Law2 / COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS...
Municipal Law, Negligence

COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT.

The Second Department determined defendant county was not entitled to summary judgment in this bicycle accident case. Plaintiffs alleged the county left loose gravel in the bike path after patching a hole (the loose gravel allegedly caused the accident). The written notice requirement did not apply because it was alleged the county created the dangerous condition. The primary assumption of the risk doctrine did not apply, The defect was not demonstrated to be trivial. The open and obvious defense applies only to the duty to warn, not the duty to make the property safe:

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The plaintiffs alleged, inter alia, that the County defendants affirmatively created the dangerous condition by leaving excess patching material at the scene of the repair. Affirmative creation is an exception to the County’s prior written notice ordinance  … . Thus, in order to establish their prima facie entitlement to judgment as a matter of law, the County defendants were required to submit evidence that they did not affirmatively create the defect as the plaintiffs alleged … . The County defendants failed to meet this burden … . Fornuto v County of Nassau. 2017 NY Slip Op 02969, 2nd Dept 4-19-17

NEGLIGENCE (COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT)/MUNICIPAL LAW (WRITTEN NOTICE REQUIREMENT DID NOT APPLY, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT)/OPEN AND OBVIOUS DEFENSE (APPLIES ONLY TO DUTY TO WARN, NOT DUTY TO KEEP PROPERTY SAFE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT)

April 19, 2017
Tags: Second Department
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LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS STUDENT BULLYING AND HARASSMENT ACTION WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT).
Condition Which Resulted in Plaintiff’s Injury Was Not the Cause of the Injury
THE BREACH OF CONTRACT CAUSE OF ACTION ALLEGING DEFENDANT ATTORNEY OVERBILLED SHOULD HAVE SURVIVED THE MOTION TO DISMISS DESPITE THE DISMISSAL OF THE LEGAL MALPRACTICE CAUSE OF ACTION (SECOND DEPT).
THE CITY ORDERED PLAINTIFF TO REPAIR A WATER LEAK ON PLAINTIFF’S PROPERTY WHICH THE CITY CLAIMED CAUSED A SINK HOLE IN THE ABUTTING ROAD; PLAINTIFF PAID FOR EXCAVATING THE AREA AND FIXING THE ROAD; PLAINTIFF SUED THE CITY ALLEGING THERE WAS NO WATER LEAK AND THE CITY NEGLIGENTLY ORDERED HER TO REPAIR THE ROAD; THE NEGLIGENCE CAUSE OF ACTION WAS PROPERLY DISMISSED (NO SPECIAL RELATIONSHIP WITH PLAINTIFF), BUT THE UNJUST ENRICHMENT CAUSE OF ACTION BASED ON PLAINTFF’S PAYING FOR THE REPAIR OF THE PUBLIC ROAD SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
MOTHER’S PETITION FOR A MODIFICATION OF THE CUSTODY ORDER SHOULD NOT HAVE BEEN DISMISSED AT THE CLOSE OF MOTHER’S CASE; REMITTED FOR A CONTINUED HEARING (SECOND DEPT).
CIVIL CONSPIRACY CANNOT BE BROUGHT AS AN INDEPENDENT TORT IN NEW YORK (SECOND DEPT).
ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

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