You are here: / / THERE WAS A QUESTION OF FACT WHETHER A DEFENDANT WHICH DID NOT OWN THE...

THERE WAS A QUESTION OF FACT WHETHER A DEFENDANT WHICH DID NOT OWN THE AREA WHERE PLANTIFF SLIPPED AND FELL COULD BE LIABLE UNDER THE SPECIAL USE DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there was question of fact whether defendant Ayer made a “special use” of the area of the pavement defect where plaintiff fell:

Although the Ayer defendants met their initial burden on their motion by establishing that the defect in the pavement was located on a portion of the alley owned by the Benderson defendants, the Benderson defendants raised an issue of fact in opposition with respect to whether Ayer could nevertheless be found responsible for plaintiff’s injury under application of the special use doctrine … . Specifically, the Benderson defendants’ submissions established that the defect in the pavement was located close to the property line, that an entrance to Ayer’s apartments was near the defect, and that fixtures attached to the building on Ayer’s property encroached over the property line near the defect. Therefore, the Benderson defendants raised an issue of fact as to whether Ayer had the requisite “access to, and control of,” the alley where plaintiff fell to give rise to a duty of care … . Jargiello v Ayer Dev., LLC, 2021 NY Slip Op 04828, Fourth Dept 8-26-21

 

You might also like
THE SEARCH OF THE UNCONSCIOUS OR SLEEPING DEFENDANT’S POCKETS WAS NOT A SEARCH INCIDENT TO ARREST OR A SEARCH PURSUANT TO THE MENTAL HYGIENE LAW; THE SEIZED COCAINE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).
TRIAL EVIDENCE RENDERED THE SINGLE-COUNT INDICTMENT DUPLICITOUS REQUIRING REVERSAL (FOURTH DEPT).
THE FAILURE TO INCLUDE THE DATE OF THE PRIMARY ELECTION IN THE CERTIFICATE OF AUTHORIZATION DID NOT INVALIDATE IT (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). ​
Requirements for Notice of Intent Met Despite Flaws in Document
THE SEXUAL ASSAULT REFORM ACT (SARA), WHICH REQUIRES THAT CERTAIN SEX OFFENDERS RESIDE IN SARA-COMPLIANT HOUSING (AWAY FROM SCHOOL GROUNDS) UPON RELEASE FROM PRISON DOES NOT APPLY TO SEX OFFENDERS WHO HAVE BEEN ADJUDICATED YOUTHFUL OFFENDERS (FOURTH DEPT).
THE REMARKS MADE BY THE POLICE DURING THE INTERROGATION OF DEFENDANT SERVED TO NEGATE THE MIRANDA WARNINGS; INTERROGATION CONTINUED AFTER DEFENDANT ASSERTED HIS RIGHT TO COUNSEL; THE ERRORS WERE DEEMED HARMLESS BECAUSE DEFENDANT WOULD HAVE BEEN CONVICTED EVEN IF THE STATEMENTS HAD BEEN SUPPRESSED (FOURTH DEPT).
THE WARRANT REQUIRED THE SEIZED CELL PHONE BE “RETURNED TO THE COURT;” INSTEAD THE CELL PHONE WAS TURNED OVER TO A CYBERSECURITY CENTER WHICH CONDUCTED A FORENSIC EXAMINATION AND MEMORY EXTRACTION; DEFENSE COUNSEL’S FAILURE TO MOVE TO SUPPRESS THE INFORMATION GLEANED FROM THE CELL PHONE CONSTITUTED INEFFECTIVE ASSISTANCE; MANSLAUGHTER CONVICTION VACATED (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

SOMEONE WAS TRYING TO OPEN THE DOOR TO DEFENDANT’S HOME AND SHE SHOT THROUGH... THE MAYOR’S STATEMENTS WERE TRUE AND DID NOT EVINCE MALICE; PLAINTIFF’S...