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PLAINTIFF IN THIS SLIP AND FALL CASE ALLEGED HE WAS INJURED WHEN HE STEPPED ON A LOOSE MANHOLE COVER OWNED BY DEFENDANT-TOWN; THE TOWN DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION BUT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-town’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged he stepped on a loose manhole cover which swung out from under him crushing his leg. The town demonstrated it did not have written notice of the condition, but did not demonstrate it did not create the condition:

Where, as here, the plaintiff alleged that the affirmative negligence exception applies, the defendant must show, prima facie, that the exception does not apply … .

Here, the plaintiff alleged that the defendant created the alleged dangerous condition, inter alia, through its initial placement of the manhole and by the use of an ill-fitting manhole cover, and the defendant’s submissions in support of its motion for summary judgment do not address these allegations. Accordingly, the defendant failed to establish, prima facie, that it did not create the alleged defect … . Dejesus v Town of Mamaroneck, 2020 NY Slip Op 07542, Second Dept 12-16-20

 

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