You are here: / / QUESTION OF FACT WHETHER DEFENDANT’S EMPLOYEE SAW WHAT HE SHOULD...

QUESTION OF FACT WHETHER DEFENDANT’S EMPLOYEE SAW WHAT HE SHOULD HAVE SEEN BEFORE THE EMPLOYEE’S GARBAGE CART COLLIDED WITH PLAINTIFF’S SCOOTER AS PLAINTIFF BACKED OUT OF AN ELEVATOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact raised by the defendant housing authority’s evidence precluded summary judgment. Plaintiff was injured when a custodian pushing a cart collided with plaintiff’s scooter as plaintiff backed out of an elevator. The custodian’s claim that he could see clearly in front of him raised a credibility issue:

​

Here the evidence the Housing Authority submitted in support of the motion was insufficient to establish its prima facie entitlement to judgment as a matter of law. The evidence did not eliminate any material issue of fact as to whether its employee was negligent in handling the garbage cart at the time of the incident. The employee testified at his deposition that he was told to watch for people in the hallways and to never fill the cart too high so as to block his vision at the front of the cart. He never loaded the cart higher than chest height, at the time of the accident there was nothing obstructing his view, and he always looked in front of him when pushing the cart to make sure no one was in front of him. At the time of the incident he could see clearly in front of him, he was not walking fast, and he was cautiously pushing the cart with his usual force. The employee further testified at his deposition that he first saw the plaintiff only after he felt the impact of his cart striking the plaintiff, and he stopped to see what had occurred. It is undisputed that the plaintiff had been on his scooter backing out of the elevator before the impact, which raises a question as to the credibility of the employee’s testimony that he could see clearly in front of him as he was pushing the cart, when he did not see or hear the elevator open or the plaintiff backing out of the elevator. Further, there is a question of fact as to whether the employee was negligent in failing to “see what should be seen” … . Since the Housing Authority failed to eliminate all questions of fact as to the happening of the accident, the Supreme Court should have denied its motion without regard to the sufficiency of the plaintiff’s opposition papers … . Richardson v County of Nassau, 2017 NY Slip Op 09187, Second Dept 12-27-17

 

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT’S EMPLOYEE SAW WHAT HE SHOULD HAVE SEEN BEFORE COLLIDING WITH PLAINTIFF’S SCOOTER AS PLAINTIFF BACKED OUT OF AN ELEVATOR (SECOND DEPT))

You might also like
Defense Counsel’s Main Reason for the Peremptory Challenges To Which the Prosecutor Objected, i.e., the Potential Jurors Had Been Crime-Victims, Was Not Pretextual
TERMINATION OF OUT OF WORK SCHOOL DISTRICT EMPLOYEE PURSUANT TO THE CIVIL SERVICE LAW IS NOT ARBITRABLE, PETITION TO STAY ARBITRATION SHOULD HAVE BEEN GRANTED.
MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).
DEFENDANT WHICH BUILT THE SWIMMING POOL, DEFENDANT WHICH INSTALLED THE POOL LINER, AND DEFENDANT OWNERS OF THE POOL, WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS SWIMMING POOL INJURY CASE, PLAINTIFF WAS INJURED WHEN HE DOVE IN AND STRUCK HIS CHIN IN A SHALLOW AREA (SECOND DEPT).
DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT.
ATTORNEY WHO DRAFTED THE 2005 WILL APPOINTING THE ATTORNEY AS EXECUTOR WAS REQUIRED TO HAVE THE TESTATOR ACKNOWLEDGE THE TESTATOR HAD BEEN INFORMED THAT FAILURE TO COMPLY WITH THE DISCLOSURE REQUIREMENTS WOULD RESULT IN THE ATTORNEY-EXECUTOR’S ENTITLEMENT TO ONLY ONE-HALF THE STATUTORY EXECUTOR’S COMMISSIONS (SECOND DEPT).
CHIDREN WERE HEALTHY AND WELL CARED FOR, NEGLECT PETITION BASED UPON MOTHER’S MENTAL ILLNESS PROPERLY DISMISSED.
FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT.

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE... ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE...