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FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT).

The Second Department determined Supreme Court properly refused to grant summary judgment dismissing a portion of the complaint which alleged inadequate lighting as a cause of plaintiff’s slip and fall.  Plaintiff alleged she tripped over a rolled up mat after voting at an elementary school:

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The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the municipality to investigate the claim … .

Here, the plaintiffs’ notice of claim, which set forth [plaintiff] was “caused to fall as a result of a rolled up mat” which was positioned several feet in front of the door inside Hiawatha Elementary School, included information which was sufficient to enable the defendants to investigate the claim. * * *

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Here, testimony at the hearing held pursuant to General Municipal Law § 50-h, which established the lighting conditions at the time and place of [plaintiff’s] accident, supplemented the notice of claim and provided the defendants with additional information regarding the manner in which the claim arose … . Moreover, an incident report prepared by the defendants’ employee shortly after [plaintiff’s] accident noted that the area where she fell was dark due to a power loss at the building. Contrary to the defendants’ contention, the plaintiffs’ bill of particulars, which alleged, inter alia, that the occurrence and resulting injury were caused by the defendants’ negligence in “placing a rolled up mat in the walkway in a poorly lit area in front of the exit from the school” did not substantially alter the nature of the plaintiffs’ claim. * * *

Contrary to the defendants’ contention, the power outage did not relieve them of their duty to address the allegedly dangerous condition created by the loss of power which may have obscured the mat from view … . Moreover, the defendants failed to establish, prima facie, their entitlement to summary judgment on the ground that the rolled up mat was open and obvious, and not inherently dangerous as a matter of law … . Lipani v Hiawatha Elementary Sch., 2017 NY Slip Op 06436, Second Dept 9-13-17

 

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/LIGHTING (SLIP AND FALL, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))

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THE AFFIANT DID NOT SUBMIT THE BUSINESS RECORDS DEMONSTRATING THE NOTE WAS PHYSICALLY DELIVERED TO THE PLAINTIFF BEFORE THE FORECLOSURE ACTION WAS COMMENCED AND DID NOT DEMONSTRATE SHE HAD PERSONAL KNOWLEDGE THAT PLAINTIFF POSSESSED THE NOTE AT THE TIME THE ACTION WAS COMMENCED; THEREFORE PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE (SECOND DEPT).
DEFENDANT ENTITLED TO PERMISSIVE ADVERSE INFERENCE JURY INSTRUCTION BASED UPON THE PEOPLE’S LOSS OR DESTRUCTION OF EVIDENCE REQUESTED BY THE DEFENDANT (SECOND DEPT).
EXCLUDING A SPECTATOR FROM THE TRIAL BECAUSE HE WAS SLEEPING DEPRIVED DEFENDANT OF HIS RIGHT TO A PUBLIC TRIAL; THE CONSTITUTIONAL ERROR IS NOT SUBJECT TO A HARMLESS ERROR ANALYSIS; NEW TRIAL ORDERED (SECOND DEPT).
THE ALLEGED FAILURE TO ELIMINATE A TRIPPING HAZARD WAS NOT ACTIONABLE BECAUSE PLAINTIFF WAS NOT A PARTY TO THE CONTRACT BETWEEN DEFENDANT AND PLAINTIFF’S EMPLOYER, DEFENDANT’S ACTS OR OMISSIONS DID NOT FIT WITHIN ANY OF THE ESPINAL EXCEPTIONS IN THIS SLIP AND FALL CASE (SECOND DEPT).
BANK DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT OR COMPLIANCE WITH RPAPL 1304 NOTICE REQUIREMENTS; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION WAS INSUFFICIENT; THE BUSINESS RECORDS REFERRED TO IN THE AFFIDAVIT WERE NOT PRODUCED (SECOND DEPT).

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