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MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT).

The Second Department determined the defendant’s (Queens Ballpark’s) motion to dismiss this slip and fall action, based on documentary evidence, was properly denied. The documents did not conclusively establish that defendant did not create the condition which caused the sidewalk slip and fall, and did not establish that had not assumed the landowner’s responsibility to maintain a safe sidewalk by the terms of the lease:

Pursuant to Administrative Code of the City of New York § 7-210(a), “the owner of real property abutting any sidewalk” has a duty “to maintain such sidewalk in a reasonably safe condition.” “Notwithstanding any other provision of law, the owner of real property abutting any sidewalk[] . . . shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition” (id. § 7-210[b]). “As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party”… . “However, where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, the tenant may be liable to a third party” … .

Here, the documentary evidence submitted by Queens Ballpark failed to utterly refute the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law … . Further, Queens Ballpark failed to establish conclusively that the plaintiff had no cause of action … . In her complaint, the plaintiff alleged that Queens Ballpark created the alleged defect in the sidewalk, and that Queens Ballpark was liable pursuant to Administrative Code § 7-210 for failing to maintain the sidewalk in a reasonably safe manner. Queens Ballpark’s evidence, namely, excerpts from its lease of the parking lot, photographs of the sidewalk, and an affidavit from the Executive Director of Ballpark Operations for Queens Ballpark, did not address whether Queens Ballpark created the alleged defect, or whether Queens Ballpark had entirely displaced the landowner’s duty to maintain the sidewalk such that Queens Ballpark could be held liable to the plaintiff under Administrative Code § 7-210 … . Torres v City of New York, 2017 NY Slip Op 06096, Second Dept 8-9-17

 

NEGLIGENCE (SLIP AND FALL, SIDEWALK, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/SLIP AND FALL (SIDEWALK, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS,  MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))

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Review Criteria for Actions by Zoning Boards of Appeal
DEFENDANT MADE A DISCOVERY DEMAND FOR “LINE OF DUTY” DOCUMENTS RELEVANT TO THE DEFENSE; THE PEOPLE DID NOT ADDRESS THE DEMAND; ON APPEAL THE PEOPLE ARGUED FOR THE FIRST TIME THAT THERE WERE NO SUCH DOCUMENTS; BY FAILING TO ADDRESS THE DEMAND IN THE MOTION COURT, THE PEOPLE WERE DEEMED TO HAVE CONCEDED THE EXISTENCE OF THE DOCUMENTS; THE CERTIFICATE OF COMPLIANCE WAS THEREFORE ILLUSORY; INDICTMENT DISMISSED (SECOND DEPT).
ACTION SEEKING REFORMATION OF NOTE AND MORTGAGE PROPERLY DISMISSED UNDER DOCTRINE OF LACHES.
TOWN DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH RESULTED IN THE FORMATION OF ICE, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).
DEFENSE ‘FALSE CONFESSION’ EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY, CONVICTION REVERSED; RIGHT TO CONFRONT WITNESSES NOT VIOLATED BY STATEMENTS IN THE VIDEO INTERROGATION THAT NONTESTIFYING WITNESSES HAD IMPLICATED THE DEFENDANT (SECOND DEPT).
PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED.
DEFENDANT’S UNLAWFUL IMPRISONMENT CONVICTION MERGED WITH OFFENSES OF WHICH DEFENDANT WAS ACQUITTED; ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT).
ON APPEAL DEFENDANT CHALLENGED THE VOLUNTARINESS OF HIS GUILTY PLEA BUT THE PLEA MINUTES WERE NOT AVAILABLE; DEFENDANT DID NOT SHOW THAT RECONSTRUCTION OF THE 2013 PLEA PROCEEDING WAS IMPOSSIBLE; THEREFORE THE MATTER WAS REMITTED FOR A RECONSTRUCTION HEARING (SECOND DEPT),

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