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CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined the defendant city demonstrated that it did not create or have actual or constructive notice of the black ice in the crosswalk where plaintiff slipped and fell. The decision illustrates the level of proof necessary for a defendant’s successful summary judgment motion in a slip and fall case:

The City established entitlement to judgment as a matter of law in this action for personal injuries sustained when plaintiff slipped and fell on “black ice,” while crossing a cleared crosswalk, eight days after there was a snowfall of about 20 inches. The City submitted evidence showing it neither created nor had actual or constructive notice of the black ice that allegedly caused plaintiff’s fall, including deposition testimony from a Department of Sanitation supervisor detailing the City’s extensive snow and ice removal efforts in the area of the accident in the days preceding the accident. The City also submitted climatological records showing temperature fluctuations above and below freezing in the two days before the date of the accident, and freezing temperatures in the hours immediately preceding plaintiff’s fall. Thus, the City demonstrated that it would be speculative to conclude that it caused or had sufficient time to remedy the subject icy condition… . The City further showed lack of constructive notice by submitting plaintiff’s deposition testimony that the crosswalk appeared to have been cleared for safe crossing and that she did not observe the black ice until after she fell … .

In opposition, plaintiff failed to raise an issue of fact. She provided no evidence of actual or constructive notice of the black ice in the crosswalk, which she admittedly did not see. Plaintiff also failed to provide any nonspeculative basis for finding that the City’s snow clearing efforts were negligent or that they exacerbated the dangerous conditions that were created by the blizzard… . The opinion of plaintiff’s expert that the City should have checked the crosswalk twice daily for possible “thaw and refreeze,” was unsupported by reference to any authority, standard, or other corroborating evidence … . Pena v City of New York, 2018 NY Slip Op 03477, First Dept 5-15-18

​NEGLIGENCE (SLIP AND FALL, CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT))/MUNICIPAL LAW (SLIP AND FALL, CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT))/SLIP AND FALL (CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT))

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE LESSER INCLUDED OFFENSE OF PETIT LARCENY; THE VALUE OF THE STOLEN CELL PHONES SHOULD NOT HAVE BEEN ADDED TOGETHER BECAUSE THERE WAS NO PROOF THE CELL PHONES WERE OWNED BY THE SAME OWNER (FIRST DEPT).
PURPORTED ORAL AGREEMENT TO PURCHASE ART WORKS BY PLAINTIFF PETER BEARD BARRED BY THE STATUTE OF FRAUDS, PAYMENTS ALLEGEDLY MADE TO PLAINTIFF WERE NOT UNEQUIVOCALLY REFERABLE TO THE ALLEGED CONTRACT (FIRST DEPT).
A STIPULATION TOLLING THE STATUTE OF LIMITATIONS IS ENFORCEABLE, DESPITE THE RETROACTIVE APPLICATION OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) (FIRST DEPT).
BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT.
SIDEWALK DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
ALTHOUGH A JURY TRIAL WAIVER IN A CONTRACT IS NOT ENFORCED WHERE A COUNTERCLAIM ASSERTS FRAUDULENT INDUCEMENT, HERE THE FRAUDULENT-INDUCEMENT COUNTERCLAIM SOUGHT RESCISSION OF THE CONTRACT, EQUITABLE RELIEF WHICH MUST BE TRIED BY THE COURT; THE MOTION TO STRIKE DEFENDANTS’ JURY-TRIAL DEMAND SHOULD HAVE BEEN GRANTED (FIRST DEPT).
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