You are here: / / DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE...

DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF OR CREATE THE ICY CONDITION, THEIR SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS.

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Defendants’ failed to demonstrate they did not have actual or constructive notice of or create the icy condition:

​

… [T]he defendants failed to establish, prima facie, that they did not create the alleged hazardous condition or have actual or constructive notice of it. The plaintiff testified at her deposition that six or more inches of snow fell the day before the accident, and that the area of the gas station where she fell looked as if it had been plowed. The defendants provided only general information about their snow and ice removal practices, and no evidence was submitted, inter alia, as to when it last snowed prior to the time of the accident, what they actually did to remove snow and ice from the premises prior to the accident, when they last inspected the accident site prior to the accident, or what the accident site looked like within a reasonable time prior to the accident. Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them, regardless of the sufficiency of the plaintiff’s opposition papers … .  D’Esposito v Manetto Hill Auto Serv., Inc., 2017 NY Slip Op 03729, 2nd Dept 5-10-17

NEGLIGENCE (DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF OR CREATE THE ICY CONDITION, THEIR SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)/SLIP AND FALL (DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF OR CREATE THE ICY CONDITION, THEIR SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)

You might also like
A NOTICE OF CLAIM IS NOT A PLEADING AND THEREFORE NEED NOT BE ANNEXED TO A SUMMARY JUDGMENT MOTION; ALTHOUGH PLAINTIFF IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION ESTABLISHED HE FELL FROM A SCAFFOLD, HE DID NOT ESTABLISH THE FALL WAS DUE TO INADEQUATE SAFETY EQUIPMENT; HIS MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED ON THAT GROUND (SECOND DEPT).
AN EXPERT IN A MED MAL CASE NEED NOT BE A SPECIALIST IN THE RELEVANT FIELD; HERE A PRIMARY CARE PHYSICIAN LAID A PROPER FOUNDATION FOR AN OPINION ABOUT PLAINTIFF’S CARE; PLAINTIFF ALLEGED DEFENDANTS NEGLIGENTLY FAILED TO DIAGNOSE HER HEART CONDITION (SECOND DEPT).
A LATE MOTION FOR SUMMARY JUDGMENT SHOULD BE ALLOWED WHERE, AS HERE, DISCOVERY WAS NOT COMPLETE AT THE TIME THE MOTION WAS DUE AND THE DISCOVERY IS ESSENTIAL TO THE MOTION (SECOND DEPT).
DEFENSE COUNSEL’S QUESTIONS WHETHER COMPLAINANTS HAD HIRED LAWYERS AND HAD SUED DEFENDANT-TEACHER AND THE SCHOOL DISTRICT IN THIS CHILD SEX ABUSE CASE DID NOT OPEN THE DOOR TO ALL EVIDENCE OF DEFENDANT’S ALLEGED PRIOR SEXUAL ABUSE OF CHILDREN, CONVICTION REVERSED BECAUSE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL; JUDGE SHOULD NOT HAVE PARTICIPATED IN A READBACK OF TESTIMONY (SECOND DEPT).
TRIAL JUDGE SHOULD HAVE CONDUCTED AN INQUIRY AFTER RECEIVING A NOTE INDICATING THAT A JUROR COULD NOT CONTINUE, INSTEAD THE JUDGE REPLACED THE JUROR WITH AN ALTERNATE WITHOUT AN INQUIRY, NEW TRIAL ORDERED (SECOND DEPT).
E-Mail Met All Criteria for a Stipulation of Settlement Including the “Subscribed Writing” Requirement
PLAINTIFF PREVAILED IN THIS BREACH OF CONTRACT ACTION; HOWEVER, ABSENT A CONTRACT PROVISION, OR A STATUTE OR COURT RULE ALLOWING THE AWARD, PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (SECOND DEPT). ​
Two Options to Recover on Note and Mortgage; One in Law (Note); One in Equity (Foreclosure)

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

PLAINTIFF DID NOT KNOW WHAT CAUSED HER FALL, CODE VIOLATIONS NOT CONNECTED TO... EVIDENCE OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE DEFENDANT DID NOT...