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PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county did not demonstrate it did not create the obstruction of the sidewalk with snow and further did not demonstrate the obstruction was not the proximate cause of plaintiff’s injury. Plaintiff alleged the snow in the sidewalk forced her to walk in the street, where she was struck by a car:

” Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies'” … . As relevant here, an exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence … . ” The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by the plaintiff[ ] in the pleadings and bill of particulars'” … . Here, the plaintiffs alleged that the County affirmatively caused or contributed to the dangerous condition through its snow plowing operations on Old Country Road that caused snow to be deposited onto the sidewalk. Therefore, to demonstrate its entitlement to judgment as a matter of law, the County was required to establish, prima facie, that it did not receive prior written notice of the dangerous condition and that it did not create the alleged dangerous condition … . Although the County demonstrated, prima facie, that it did not receive prior written notice, the County’s submissions failed to establish, prima facie, that its snow removal operations did not create or exacerbate a dangerous condition … .

The County also failed to make a prima facie showing that its alleged negligence was not a proximate cause of the accident. “Where the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed” … . “An intervening act constitutes a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct'” … . Where, however, “the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant, the causal nexus is not severed and liability will subsist” … . The issue of whether an act is foreseeable is generally for the trier of fact … . Here, the County’s alleged negligent snow plowing operations contributed to the obstruction of the sidewalk, which prevented Piazza [plaintiff] from continuing to walk on the sidewalk, and caused her to walk in the roadway where she was hit by a vehicle driven by Volpe. Under these circumstances, there is a triable issue of fact as to whether Volpe’s act in hitting Piazza with her vehicle was a natural and foreseeable consequence of the County’s alleged negligence. Piazza v Volpe, 2017 NY Slip Op 05986, Second Dept 8-2-17

NEGLIGENCE (MUNICIPAL LAW, TRAFFIC ACCIDENTS, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW,  PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/PEDESTRIANS (MUNICIPAL LAW, TRAFFIC ACCIDENTS,  PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/SIDEWALKS (NEGLIGENCE, MUNICIPAL LAW, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))

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THE 90-DAY NOTICE WAS DEFECTIVE; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO CPLR 3216 (SECOND DEPT).
DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE LIQUID ON THE FLOOR WHICH ALLEGEDLY CAUSED PLAINTIFF TO SLIP AND FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFECT WHICH CAUSED PLAINTIFF TO SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).
PLAINTIFF WAS KNOCKED TO THE FLOOR BY A SHOPPING CART PUSHED BY ANOTHER STORE CUSTOMER; THE DEFENDANT STORE DID NOT HAVE A DUTY TO MONITOR CUSTOMERS’ USE OF SHOPPING CARTS; ISSUE COULD BE CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).
THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 13O4 AND A CONDITION PRECEDENT IN THE MORTGAGE IN THIS FORECLOSURE ACTION; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Town’s Actual or Constructive Notice of a Sidewalk Defect Does Not Obviate the Written Notice Requirement
FOR CAUSE CHALLENGES TO TWO JURORS WHO WERE UNABLE TO UNDERSTAND THE PEOPLE’S BURDEN OF PROOF SHOULD HAVE BEEN GRANTED (SECOND DEPT).
EVEN THOUGH PLAINTIFF MAY HAVE ACCEPTED DEFECTIVE GOODS WITHIN THE MEANING OF THE UCC, THE UCC PROVIDES REMEDIES, INCLUDING THE RIGHT TO BE MADE WHOLE AND THE RIGHT TO REVOKE THE ACCEPTANCE; PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE (SECOND DEPT). ​

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