You are here: / / SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK...
, ,

SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined (1) the court should not have searched the record and awarded summary judgment to the plaintiff in this sidewalk slip and fall case based upon a theory raised for the first time in reply papers, (2) the city defendants did not demonstrate that they did not have written notice of the condition or that they did not create the condition, and (3) evidence submitted by the city defendants for the first time in reply papers could not be considered with respect to a prima facie showing of entitlement to summary judgment:

The plaintiff alleged, for the first time in opposition to the motion and cross motion for summary judgment, that the defendants were strictly liable under an absolute nuisance theory. However, a plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting, for the first time in opposition to the motion, a new theory of liability that was not pleaded in the complaint or bill of particulars … . …

… [T]he City defendants’ … “failed to demonstrate their prima facie entitlement to judgment as a matter of law on the ground that they had no prior written notice as they failed to submit proof of such lack of notice from the proper municipal official”…, or that they did not create the alleged dangerous condition through an affirmative act of negligence… . The evidence submitted by the City defendants for the first time in their reply papers cannot be considered for the purpose of determining whether they met their prima facie burden … . Troia v City of New York, 2018 NY Slip Op 04770, Second Dept 6-27-18

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/REPLY PAPERS (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SUMMARY JUDGMENT (REPLY PAPERS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SLIP AND FALL (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))

You might also like
A DEFENSE WITNESS HELD OUT AS DISINTERESTED AND OBJECTIVE WAS IN FACT EMPLOYED BY THE DEFENDANTS; PLAINTIFFS’ MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
Scientific Expert Opinion Need Not Be Based Upon Textual Authority
DEFENDANTS RELIED ON A STATEMENT TRANSLATED FROM SPANISH ATTRIBUTED TO PLAINTIFF BUT FAILED TO SHOW THAT THE TRANSLATION WAS PROVIDED BY A COMPETENT, OBJECTIVE INTERPRETER WHOSE TRANSLATION WAS ACCURATE; THEREFORE THE STATEMENT DID NOT RAISE A QUESTION OF FACT IN THIS LADDER-FALL CASE (SECOND DEPT).
COMMUNICATION BETWEEN SPOUSES DOES NOT CONSTITUTE PUBLICATION IN A DEFAMATIOIN ACTION; MOTION TO SET ASIDE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED.
FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).
EVIDENCE THE CHILD WITNESSED A PHYSICAL ALTERCATION BETWEEN MOTHER AND FATHER WAS SUFFICIENT FOR A FINDING FATHER NEGLECTED THE CHILD (SECOND DEPT).
THE USE OF POST-DISCHARGE AFFIDAVITS FROM TWO JURORS, CLAIMING JUROR CONFUSION, AS THE BASIS FOR THE MOTION TO SET ASIDE THE VERDICT WAS IMPROPER BECAUSE THERE WAS NO SUPPORT FOR THE CLAIMS IN THE RECORD; THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).
Denial of Property Tax Refunds by Director of Tax Commission Was Not Final—Article 78 Claims Not Ripe for Judicial Review

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

CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE,... FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT...