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A CONTRACTOR WHICH CREATES A DANGEROUS CONDITION ON A PUBLIC SIDEWALK MAY BE LIABLE FOR A SLIP AND FALL BY A MEMBER OF THE PUBLIC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant sidewalk-repair contractor’s motion for summary judgment in this slip and fall case should not have been granted. There was a question of fact whether the contractor who repaired the sidewalk created the hole which caused plaintiff to trip. A contractor may be liable for an affirmative act of negligence which results in a dangerous condition on a public street or sidewalk:

“A contractor may be [held] liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk” … . Here, Amato [the defendant contractor] failed to establish its prima facie entitlement to judgment as a matter of law.

At his deposition, Victor Amato, Amato’s owner, testified that his company had replaced a portion of the sidewalk at the subject location.  … He acknowledged … that a two-by-four had been installed as a vertical “stake” to support a form that was used when the concrete was poured, and that he or one of his employees would have removed the stake after the concrete had set.

… [T]he plaintiff testified that she had not seen the hole because, from the direction she was walking, it was on the other side of an uneven, or sloped, portion of the sidewalk. Victor Amato admitted that this slope had been created deliberately (through a process known as “feathering”) because the new portion of the sidewalk was at a different height from the existing sidewalk. Pizzolorusso v Metro Mech., LLC, 2022 NY Slip Op 03018, Second Dept 5-4-22

Practice Point: Contactors which create a dangerous condition on a public sidewalk or road may be liable to a member of the public who is injured by the dangerous condition. The theory is similar to the “launch an instrument of harm” theory of contractor liability under the Espinal case.

 

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AFTER THE CITY MOVED FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE ON THE GROUND IT DID NOT HAVE WRITTEN NOTICE OF THE ICY CONDITION, THE PLAINTIFFS, YEARS AFTER THE STATUTE OF LIMITATIONS HAD EXPIRED, MOVED FOR LEAVE TO AMEND THE NOTICE OF CLAIM TO ALLEGE THE CITY CREATED THE DANGEROUS CONDITION; THE PLAINTIFFS SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM AND THE CITY SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).
FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT).
Weight of the Evidence Review Required Reversal
BY ENTERING A PLEA AGREEMENT WITH A TESTIFYING CODEFENDANT THE TRIAL JUDGE ABANDONED THE ROLE OF A NEUTRAL ARBITER AND DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).
THE COURT SHOULD HAVE HELD A FRYE HEARING ON THE ADMISSIBILITY OF DNA-RELATED EVIDENCE GENERATED BY THE FORENSIC STATISTICAL TOOL (FST); CONVICTION REVERSED (SECOND DEPT).
THE COUNTY WHERE PLAINTIFF AND DEFENDANT OWNED A SEASONAL SECOND HOME (WHERE DEFENDANT LIVED AFTER COVID REACHED NEW YORK CITY) WAS NOT THE PROPER VENUE FOR THE DIVORCE ACTION (SECOND DEPT).
ALTHOUGH AN ORDER DISMISSING THE COMPLAINT HAD BEEN ISSUED, NO JUDGMENT DISMISSING THE COMPLAINT WAS ENTERED; THEREFORE THE ACTION WAS STILL VIABLE AND PLAINTIFFS COULD MOVE TO EXTEND THE TIME TO SERVE; THE MOTION SHOULD HAVE BEEN GRANTED IN THE INTEREST OF JUSTICE (SECOND DEPT). ​
THE EVIDENCE OF DEFENDANT’S DEFAULT WAS HEARSAY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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