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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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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS BASED UPON INADMISSIBLE HEARSAY AND SHOULD NOT HAVE BEEN CONFIRMED BY SUPREME COURT (SECOND DEPT).
PLAINTIFF DID NOT HAVE STANDING TO CONTEST PROPERTY TRANSFER TO HER BROTHER BY HER MOTHER BASED UPON AN ALLEGATION MOTHER LACKED MENTAL CAPACITY AT THE TIME OF THE TRANSFER, PLAINTIFF HAD ONLY A POTENTIAL, SPECULATIVE INTEREST IN HER MOTHER’S PROPERTY.
A DISMISSAL OF A COMPLAINT FOR FAILURE TO PROSECUTE (CPLR 3215) IS NOT ON THE MERITS AND THEREFORE IS NOT “WITH PREJUDICE” (SECOND DEPT).
PLAINTIFF DID NOT SUFFER A “SERIOUS INJURY” WITHIN THE MEANING OF THE INSURANCE LAW IN THE UNDERLYING PEDESTRIAN-VEHICLE ACCIDENT CASE; THEREFORE PLAINTIFF COULD NOT HAVE SUCCEEDED ON THE MERITS OF THAT ACTION; DEFENDANT ATTORNEY WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE INSTANT LEGAL MALPRACTICE ACTION (SECOND DEPT).
DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).
ALTHOUGH THE RAISED PORTION OF THE SIDEWALK FLAG OVER WHICH PLAINTIFF TRIPPED DID NOT ABUT DEFENDANTS’ PROPERTY SEVERAL FEET OF THE FLAG EXTENDED IN FRONT OF DEFENDANTS’ PROPERTY; THE VILLAGE CODE MANDATES THAT ABUTTING PROPERTY OWNER’S MAINTAIN SIDEWALKS IN A SAFE CONDITION; DEFENDANTS DID NOT SUBMIT ANY EVIDENCE THAT THEY MAINTAINED THE ABUTTING PORTION OF THE SIDEWALK IN A SAFE CONDITION OR THAT ANY FAILURE TO DO SO WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S FALL (SECOND DEPT).
THE LOAN SERVICER’S AFFIDAVIT IN THIS FORECLOSURE ACTION LAID A PROPER FOUNDATION FOR THE BUSINESS RECORDS DESCRIBED IN IT, BUT THE RECORDS THEMSELVES WERE NOT ATTACHED, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).
BANK’S EVIDENCE OF STANDING DID NOT MEET THE CRITERIA OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

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PLAINTIFF’S EXPERT RAISED A QUESTION OF FACT WHETHER A DELAY IN DIAGNOSIS... IT WAS ALLEGED DEFENDANTS-ATTORNEYS DID NOT INSTRUCT THE DECEDENT TO REVOKE...