You are here: / / QUESTION OF FACT WHETHER AN UNGUARDED, UNILLUMINATED SEAWALL AT THE BACK...

QUESTION OF FACT WHETHER AN UNGUARDED, UNILLUMINATED SEAWALL AT THE BACK OF DEFENDANTS’ YARD CONSTITUTED AN ACTIONABLE DANGEROUS CONDITION; PLAINTIFF, AT NIGHT, FELL OVER THE WALL DOWN TO THE BEACH BELOW (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether the unguarded seawall in defendants’ backyard constituted a dangerous condition. Plaintiff was at defendants’ party and walked to the back of the yard to relieve himself when he fell over the wall, which was 20 feet above the lake:

Defendants’ backyard is approximately 20 feet above the lake, separated by a natural cliff that runs along the shoreline. Built into the face of the cliff is the 15-foot-high seawall, which consists of two levels, with an upper and a lower platform, and a cement staircase built into the center of the seawall that permits access from the backyard to the lower platform. Defendants’ backyard includes a cement sidewalk that leads to the top of the seawall’s staircase. Plaintiff fell off the seawall down to the beach below and sustained various injuries. * * *

… [D]efendants failed to eliminate all triable issues of fact whether the alleged hazard posed by the cliff and seawall, given the lighting conditions at the time of the accident, “was visible and obvious or presented a latent, dangerous condition” … . Stempien v Walls, 2021 NY Slip Op 02683, Fourth Dept 4-30-21

 

You might also like
CONSECUTIVE PERIODS OF POSTRELEASE SUPERVISION VIOLATED THE PENAL LAW; ERROR DID NOT NEED TO BE PRESERVED (FOURTH DEPT).
DEFENDANT CAR DEALERSHIP OWNED THE CAR IN WHICH PLAINTIFF, ITS SALESMAN, WAS INJURED DURING A TEST DRIVE; THE DEALERSHIP, AS PLAINTIFF’S EMPLOYER, IS IMMUNE FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW AND IS NOT VICARIOUSLY LIABLE AS THE OWNER OF THE CAR UNDER THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).
ALTHOUGH FATHER FAILED TO APPEAR, HIS COUNSEL APPEARED AND FATHER WAS THEREFORE NOT IN DEFAULT; BECAUSE FATHER WAS NOT IN DEFAULT, APPEAL IS NOT PRECLUDED (FOURTH DEPT).
DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO CHALLENGE THE INITIAL POLICE CONTACT WITH THE DEFENDANT AS UNJUSTIFIED; THE MATTER WAS REMITTED FOR A SUPPRESSION HEARING (FOURTH DEPT).
CITIZEN INFORMANT WHO WALKED INTO THE POLICE STATION PROVIDED SUFFICIENT INFORMATION TO JUSTIFY APPROACHING A VAN IN WHICH DEFENDANT WAS SLEEPING, LEADING TO DEFENDANT’S ARREST; A TWO-JUSTICE DISSENT ARGUED THE INFORMATION PROVIDED BY THE FACE-TO-FACE INTERVIEW WITH THE INFORMANT DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION (FOURTH DEPT).
PLAINTIFF SUED THE COUNTY SHERIFF SEEKING A DECLARATORY JUDGMENT THAT A LOCAL COURT WHICH ISSUES A SECURING ORDER FOR A NONQUALIFYING OFFENSE VIOLATES THE ACCUSED’S CONSTITUTIONAL RIGHTS; THE FOURTH DEPARTMENT DETERMINED THERE WAS NO JUSTICIABLE CONTROVERY INVOLVING THE SHERIFF WHO IS BOUND TO OBEY A COURT’S SECURING ORDER; THE REAL DISPUTE IS WITH THE COURT WHICH ISSUES THE ORDER IN APPARENT VIOLATION OF A STATUTE (FOURTH DEPT). ​
CONTRARY TO SUPREME COURT’S RULING, THE PURCHASE CONTRACT DID NOT INCLUDE A CLAUSE LIMITING PLAINTIFF’S REMEDY FOR A BREACH TO RETAINING THE DEPOSIT (FOURTH DEPT).
THE WARRANTLESS SEIZURE AND SEARCH OF A BAG IN DEFENDANT’S CAR WAS NOT JUSTIFIED UNDER THE INEVITABLE DISCOVERY DOCTRINE; ERROR HARMLESS HOWEVER (FOURTH DEPT).

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

NON-OWNER DID NOT HAVE STANDING TO MOVE TO VACATE AN ERIE COUNTY TAX FORECLOSURE... DEFENDANT’S ALLEGED FAILURE TO MAINTAIN ITS TRUCK LED TO AN ACCIDENT IN...