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TENANT DID NOT DEMONSTRATE IT DID NOT EXACERBATE THE CONDITION OF THE SIDEWALK BY ITS EFFORTS TO REMOVE SNOW AND THE PROPERTY OWNER AND MANAGER DID NOT DEMONSTRATE THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the tenant, the landowner and the property manager did not submit sufficient evidence to warrant summary judgment in their favor in this sidewalk slip and fall case. The tenant (PCM) did not demonstrate that it did not exacerbate the danger by its snow removal and the property owner (2248) and the property manager (Solil) did not demonstrate they did not have constructive notice of the condition. [Defendants moving for summary judgment must address every theory of liability in their papers or the motion will be denied without the need to consider the opposing papers]:

PCM failed to eliminate triable issues of fact as to whether it undertook snow and ice removal efforts on the date of the accident to clear the area of the sidewalk where Pilar allegedly slipped and fell, or whether any snow and ice removal efforts undertaken by it created or exacerbated the icy condition that allegedly caused Pilar to fall … . …

2248, as owner of the premises abutting the sidewalk where Pilar allegedly slipped and fell, and Solil, its managing agent, failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition. Section 7-210 of the Administrative Code imposes a nondelegable duty on 2248 to maintain the sidewalk abutting the premises, where Pilar allegedly fell … . In a premises liability case, a defendant real property owner or a party in possession or control of real property who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence … . Here, neither 2248 nor Solil established when the subject portion of the sidewalk was last inspected relative to when Pilar slipped and fell … . Accordingly, 2248 and Solil failed to establish, prima facie, that they did not have constructive notice of the condition that allegedly caused the plaintiff decedent’s fall … . Branciforte v 2248 Thirty First St., LLC, 2019 NY Slip Op 02845, Second Dept 4-17-19

 

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