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QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant property owner’s cross motion to dismiss the complaint should not have been granted in this slip and fall case. Plaintiff (Torgersen) had raised questions of fact whether defendant’s snow removal and salting efforts were sufficient, and whether the lighting in the parking lot was adequate:

Torgersen claimed in an affidavit that his legs kicked out from under him on ice that was covered by snow and obscured by poor lighting. This account did not directly conflict with his prior deposition testimony — in which he gave a similar account of his fall, said the lighting was not “very good” and was cut off while trying to answer the only question posed regarding the presence of ice — and the discrepancies between them “raised a credibility issue” but did not warrant rejecting the affidavit out of hand … . Plaintiffs further provided the affidavit of another tenant who stated that she observed Torgersen fall as he described. The tenant saw a large patch of ice when she came to assist him and asserted, among other things, that no one salted the parking lot when it was plowed that day and that the poor plowing and salting at the complex had been the subject of complaints. The latter allegation ran counter to proof provided by defendant and Larkin [snow removal contractor], but there is no stated reason why the other tenant would misrepresent what had occurred and, in any event, “a court may not assess credibility on a summary judgment motion ‘unless it clearly appears that the issues are not genuine, but feigned'” … . It is by no means clear here.

Considering the foregoing “in the light most favorable to plaintiffs as the opponents of summary judgment”… , material issues of fact exist regarding the role ice and poor lighting played in Torgersen’s fall and whether the ice was due to inadequate salting by Larkin or defendant’s employees and should “reasonably have [been] discovered and remedied” by defendant … . Torgersen v A&f Black Cr. Realty, LLC, 2018 NY Slip Op 01237, Third Dept 2-22-18

NEGLIGENCE (SLIP AND FALL, QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/SLIP AND FALL ( QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/LIGHTING (NEGLIGENCE, SLIP AND FALL,QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/SNOW REMOVAL (NEGLIGENCE, SLIP AND FALL, QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

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SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT). ​
THE RECORD OF THE GRAND JURY PROCEEDINGS DID NOT EXPLAIN OR JUSTIFY THE SHACKLING OF DEFENDANT’S HANDS DURING HIS TESTIMONY; EVEN IF HIS HANDS WERE UNDER THE TABLE, THE INABILITY TO USE HIS HANDS DURING HIS TESTIMONY WAS PREJUDICIAL; CONVICTION REVERSED (THIRD DEPT). ​
IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WHICH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT).
DEFENDANT WAS ENTITLED TO NOTICE COUNTY COURT INTENDED TO RELY ON FAMILY COURT RECORDS WHEN CONSIDERING DEFENDANT’S APPLICATION FOR RECLASSIFICATION AS A LEVEL-ONE SEX OFFENDER; THE THIRD DEPARTMENT NOTED THAT THE PROPER INQUIRY IS WHETHER RECLASSIFICATION IS WARRANTED BY A CHANGE IN CONDITIONS, NOT WHETHER THERE IS SUPPORT FOR THE INITIAL LEVEL-TWO CLASSIFICATION (THIRD DEPT).
CLAIMANT, A PER DIEM SUBSTITUTE TEACHER, WAS GIVEN REASONABLE ASSURANCE OF CONTINUED EMPLOYMENT AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT BENEFITS BETWEEN THE ACADEMIC TERMS (THIRD DEPT).
A Stipulation Cannot Bind an Insurer to Nonexistent Coverage
FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

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