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DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this sidewalk slip and fall case should not have been granted. Defendants failed to show that they did not create the dangerous snow-ice condition or have notice of it:

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Here, the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law … . Their own submissions, which included, inter alia, the deposition testimony of the plaintiff and the defendants’ superintendent, in addition to a certified weather report for the month of February 2014, failed to eliminate all triable issues of fact as to the whether the defendants caused or exacerbated the alleged icy condition on the subject sidewalk or had notice of it. The plaintiff testified that, at the time of the accident, she slipped on ice on the path which had been shoveled through the snow on the sidewalk adjacent to her apartment building. She also testified that the path was slippery when she had used it the night before and that she did not observe any salt or sand on it. Although the building superintendent testified as to general snow removal procedures for the building, he could not remember what he did on the date of the accident and did not have an independent recollection of removing snow from the outside of the building at any time on either February 3, 2014, or February 4, 2014. His testimony conflicted with statements set forth in his affidavit, submitted in support of the motion, in which he stated that he personally checked the path at issue at the end of his shift at 5:00 p.m. on February 4, 2014, and did not observe any snowy and/or icy condition. Such contradictory statements raise an issue of credibility which cannot be resolved on a motion for summary judgment … . Further, the certified weather report demonstrated that there was an accumulation of 6.7 inches of snow as of 5:00 p.m. on February 3, 2014, approximately 26½ hours prior to the accident, and that no snow fell on the date of the accident. Consequently, the defendants did not establish, prima facie, that they neither created the alleged hazardous icy condition on the sidewalk nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Michalska v Coney Is. Site 1824 Houses, Inc., 2017 NY Slip Op 08365, Second Dept 11-29-17

 

NEGLIGENCE (DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL  (DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ICE AND SNOW (SIDEWALKS, SLIP AND FALL, DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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CAUSES OF ACTION ALLEGING BREACH OF FIDUCIARY DUTY DO NOT ACCRUE UNTIL THE FIDUCIARY DUTY IS OPENLY REPUDIATED; CAUSES OF ACTION FOR CONVERSION BASED UPON FRAUD ARE TIMELY SIX YEARS FROM THE CONVERSION OR TWO YEARS FROM DISCOVERY OF THE CONVERSION; THE RELEVANT CAUSES OF ACTION HERE, THEREFORE, SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​
AFTER THE CITY MOVED FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE ON THE GROUND IT DID NOT HAVE WRITTEN NOTICE OF THE ICY CONDITION, THE PLAINTIFFS, YEARS AFTER THE STATUTE OF LIMITATIONS HAD EXPIRED, MOVED FOR LEAVE TO AMEND THE NOTICE OF CLAIM TO ALLEGE THE CITY CREATED THE DANGEROUS CONDITION; THE PLAINTIFFS SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM AND THE CITY SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).
DEFENDANT NYC HOUSING AUTHORITY (NYCHA) UNILATERALLY ADJOURNED THE 5O-H HEARING IN THIS SLIP AND FALL CASE AND ALLEGEDLY SENT A FOLLOW-UP LETTER TO PLAINTIFF; PLAINTIFF DENIED RECEIPT OF THE LETTER AND DEFENDANT IMPROPERLY SUBMITTED AN AFFIDAVIT OF SERVICE IN REPLY; THE AFFIDAVIT WAS NOT CONSIDERED; IN ADDITION, THE AFFIDAVIT DID NOT PROVE THE LETTER WAS MAILED TO PLAINTIFF (SECOND DEPT). ​
AN OPEN MANHOLE IS NOT AN ELEVATION-RELATED HAZARD COVERED BY LABOR LAW 240(1) (SECOND DEPT).
RE: A MOTION FOR TEMPORARY CUSTODY, IF ALLEGATIONS IN THE AFFIDAVITS ARE CONTROVERTED, A HEARING MUST BE HELD; TO BASE A TEMPORARY-CUSTODY RULING ON CONTROVERTED ALLEGATIONS IS AN ERROR OF LAW (SECOND DEPT).
BANK’S PROOF OF THE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 INSUFFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (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),
Statutorily-Mandated Venue Is Not Jurisdictional and Is Waivable

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