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THERE REMAINED QUESTIONS OF FACT WHETHER DEFENDANTS CREATED THE ICY CONDITION AND WHETHER THEY HAD 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 defendant property-owner’s and defendant property-manager’s motion for summary judgment in this slip and fall action should not have been granted. Plaintiff alleged the defendants created the icy condition and had constructive notice of the condition:

… [T]he plaintiff asserted in his bill of particulars that the defendants were negligent … in failing to maintain the premises, failing to repair the dangerous and defective condition, and in allowing an icy condition to exist. In his fourth supplemental bill of particulars, … the plaintiff clarified that the defendants created the dangerous condition that caused him to slip and fall by permitting the downspouts from the roof of the premises to deposit water directly onto the sidewalk, and alleged violations of various property maintenance codes related thereto. Thus, in support of their motion for summary judgment, the defendants were … required to demonstrate that they did not create the alleged dangerous condition … .. The defendants failed to establish … that the drains played no role in the creation or exacerbation of the icy condition that allegedly caused the accident … . Moreover, the defendants failed to demonstrate that they did not have constructive notice of the allegedly defective downspouts. While [the] property director testified at his deposition that no tenants raised concerns about drainage issues caused by the downspouts, he acknowledged that, after snow events, his on-site maintenance worker would check for “ponding” on the sidewalks around the premises. Messina v Morton Vil. Realty, Inc., 2022 NY Slip Op 01155, Second Dept 2-23-22

 

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FALLING PLYWOOD NOT ACTIONABLE UNDER LABOR LAW 240 (1), PLYWOOD WAS NOT BEING HOISTED AND WAS NOT REQUIRED TO BE SECURED, LABOR LAW 246 (1) CAUSE OF ACTION PROPERLY SURVIVED.
THE CONSENT-TO-SEARCH PROBATION CONDITION WAS NOT INDIVIDUALLY TAILORED TO THE OFFENSE AND SHOULD NOT HAVE BEEN IMPOSED; IT WAS NOT NECESSARY TO PRESERVE THE ERROR FOR APPEAL AND APPEAL WAS NOT PROHIBITED BY THE DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL (SECOND DEPT).
MOTIONS FOR SEVERANCE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).
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