You are here: / / No Constructive Notice of Icy Condition/Allegation Defendant Created the...

No Constructive Notice of Icy Condition/Allegation Defendant Created the Condition Based on Speculation

The First Department, over a dissent, affirmed the grant of summary judgment to the defendant in a slip and fall case. Plaintiff alleged she slipped and fell on a thin sheet of ice in a plaza in front of defendant’s building.  Defendant demonstrated that the area had been inspected an hour before the accident and no ice was visible.  Plaintiff acknowledged she could not see the ice.  Plaintiff’s allegation that defendant created the dangerous condition by running a fountain which was the source of a wind-borne spray of water on the plaza was deemed too speculative:

The evidence submitted by defendant, including security logs, establishes that defendant’s employees routinely inspected the area where plaintiff fell, had conducted an inspection one hour prior to her accident, and did not observe any ice. In opposition and in support of her cross motion, plaintiff failed to provide evidence showing that the ice was discernable.

On appeal, plaintiff does not dispute defendant’s lack of actual notice of ice on the plaza, having conceded, at her examination before trial, that it was not visible. She testified that although conditions at about 9:30 a.m. were bright and clear, it “looked like a thin layer of ice that wasn’t noticeable enough for me to see it before I fell.” Thus, the record establishes that the hazardous condition was not “visible and apparent” so as to enable defendant’s employees to discover it and take remedial measures… . Tompa v 767 Fifth Partners LLC, 2014 NY Slip Op 00276, 1st Dept 1-16-14

 

You might also like
International Bank With a Branch in New York Was Required to Comply with an Information Subpoena—“Separate Entity Rule” Which Prevents New York Courts from Enforcing Restraining Notices and Turnover Orders Directed to Branches of Foreign Banks Located Outside New York, Does Not Prevent New York Courts from Directing the New York Branch of a Foreign Bank to Comply with an Information Subpoena, Even though the Information Sought Relates to Foreign Branches–The Information Sought Is Available Through Electronic Searches Made by the New York Branch of the Bank
Fiduciary’s Conflict of Interest Renders Transactions Voidable
Question of Fact Whether Defendant’s Negligence Precluded Her Reliance on the Doctrine of Mutual Mistake to Rescind a Valid Oral Contract
PLAINTIFF WAS INJURED WHEN A STEP BROKE AS HE STEPPED ON IT; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THERE WAS NO SIGN THE STEP WAS DEFECTIVE; HOWEVER, THE LABOR LAW 241(6) CAUSE OF ACTION, BASED ON AN INDUSTRIAL CODE PROVISION REQUIRING THAT A STAIRCASE BE “FREE OF DEFECTS,” PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).
APPEAL OF ACTION SEEKING TO ENJOIN CONSTRUCTION OF A BUILDING DISMISSED; PLAINTIFFS DID NOT APPLY FOR AN INJUNCTION PENDING APPEAL AND CONSTRUCTION HAD CONTINUED TO THE POINT IT COULD NOT BE UNDONE WITHOUT CAUSING UNDUE HARM.
PLAINTIFF’S LOSS WAS DUE TO THE MARKET COLLAPSE OF RESIDENTIAL-BACKED MORTGAGE SECURITIES, LOSS CAUSATION ELEMENT OF FRAUD CAUSE OF ACTION THEREFORE NOT DEMONSTRATED.
THE FEDERAL CHILD-PORNOGRAPHY CRIME OF WHICH DEFENDANT WAS CONVICTED WAS BASED ON CONDUCT WHICH HAD NOT BEEN CRIMINALIZED BY A NEW YORK STATUTE AT THE TIME OF DEFENDANT’S CONVICTION; THEREFORE DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SEX OFFENDER UNDER SORA (FIRST DEPT).
THE ORDER DISMISSING THE COMPLAINT FOR FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN ONE YEAR DID NOT INLCUDE SPECIFIC FINDINGS OF A PATTERN OF DELAY; THEREFORE THE “FAILURE TO PROSECUTE” EXCEPTION IN CPLR 205 (A) DID NOT APPLY; PLAINTIFF’S ACTION BROUGHT WITHIN SIX MONTHS OF DISMISSAL WAS NOT TIME-BARRED (FIRST 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

In a Slip and Fall Case, the Flawed Constructive-Notice Jury Instruction Required... Attorney Conflict Waiver Criteria Discussed/Whether Molineux Analysis Should...