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ON A COLD DAY DEFENDANTS HOSED DOWN THE SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL ON ICE; ANY COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART IS NOT A BAR TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court and recalling and vacating a decision in the same matter dated December 17, 2020, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Defendant restaurants hosed down the sidewalk where plaintiff, an EMT responding to a call, slipped and fell on ice. Any comparative negligence on plaintiff’s part is not a bar to summary judgment:

To obtain partial summary judgment, a plaintiff does not have to demonstrate the absence of his own comparative fault … . Moreover, plaintiff is not required to show that “defendants’ negligence was the sole proximate cause of the accident to be entitled to summary judgment” … . The evidence plaintiff submitted in support of his motion shows that defendants-tenants … created the dangerous condition when their employees hosed the sidewalk on a cold winter day … . Defendants-owners Concord Partners 46th Street LLC (Concord) and Elo Equity, LLC, had a non delegable duty to maintain the sidewalk. Elo had notice that the restaurant employees had created a dangerous condition, because Elo’s superintendent had observed the restaurants’ employees hosing the sidewalk. The property manager for Concord did not personally observe the restaurant employees hosing down the sidewalk on the date in question; however, he testified that it was the general practice to hose down the sidewalk at approximately 7:30 a.m.

In opposition, defendants did not raise a question of fact with respect to the issue of their liability. Defendant restaurants admit that the evidence shows that their employees hosed the sidewalk with water before the incident occurred. Furthermore, defendants’ argument that there are triable issues of fact on the basis that plaintiff should have sought an alternative route to safely care for the patient relates to the issue of comparative negligence and, therefore, does not preclude summary resolution of the issue of their liability … . Benny v Concord Partners 46th St. LLC, 2021 NY Slip Op 01550, First Dept 3-18-21

 

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