You are here: / / IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION...
, ,

IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION. PLAINTIFF’S AFFIDAVITS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff lessee's complaint in this slip and fall case against the landlord should not have been dismissed. Although defendant, an out-of-possession landlord, demonstrated it was solely plaintiff lessee's responsibility to remove ice and snow, plaintiff raised a question of fact about whether defendant was responsible for an inadequate drainage system which caused ice and snow to accumulate. The Second Department noted that Supreme Court should have considered the expert affidavit and plaintiff's and his ex-wife's affidavits stating that the ice and snow condition could not be dealt with by normal methods (due to the drainage issue):

Here, there was no statute imposing a duty on the defendants to maintain the premises in a reasonably safe condition. The defendants also demonstrated that the parties agreed that the plaintiff would be responsible for snow and ice removal and that the plaintiff actually undertook to conduct snow and ice removal. …

Even in the absence of a duty to repair an allegedly defective condition, liability may attach to an out-of-possession landlord who has affirmatively created a dangerous condition or defect … . The defendants did not dispute that they installed the drainage system.

Moreover, the defendants failed to establish that they did not have a duty to repair a defective condition in the drainage system.

… [P]laintiff raised triable issues of fact as to whether the drainage system was defective and, if so, whether such defect contributed to his accident … . The court should have considered the affidavits of the plaintiff and his former wife, in which they averred that the icy condition on the driveway could not be ameliorated by snowplowing and their daily efforts at salting, sanding, and ashing the driveway, as those averments were consistent with the plaintiff's deposition testimony… . The court also should have considered the affidavit of the plaintiff's expert, in which he stated that defective conditions in the property's drainage system made the driveway area near the entrance prone to the pooling and freezing of water from the roof and surrounding lawn areas. Contrary to the court's determination, there is no requirement that a plaintiff establish the violation of a specific statutory provision where the duty to repair a defective condition is assumed by the landlord by contract or course of conduct … . Bartels v Eack, 2018 NY Slip Op 05995, Second Dept 9-12-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/LANDLORD-TENANT (SLIP AND FALL, NEGLIGENCE, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/OUT OF POSSESSION LANDLORD (SLIP AND FALL, NEGLIGENCE, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION, PLAINTIFF'S AFFIDAVITS SHOULD HAVE BEEN CONSIDERED  (SECOND DEPT))

You might also like
IN THIS REAR-END COLLISION CASE, THE DRIVER OF THE REAR VEHICLE ALLEGED THE OTHER VEHICLE CHANGED LANES ABRUPTLY AND CAME TO A STOP IN FRONT OF HIM; THAT CONSTITUTED A NON-NEGLIGENT EXPLANATION WHICH RAISED A QUESTION OF FACT (SECOND DEPT). ​
Reassessment of Improved Property Was Not an Unconstitutional Selective Assessment
EVIDENCE SUBMITTED WITH REPLY PAPERS SHOULD HAVE BEEN CONSIDERED, NEGLIGENT MAINTENANCE CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT IN THIS PLAYGROUND INJURY CASE (SECOND DEPT).
CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).
TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT).
FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT).
THE COUNTERCLAIM FOR LOST PROFITS DID NOT DEMONSTRATE “LOST PROFITS” AS CONSEQUENTIAL DAMAGES WAS CONTEMPLATED BY THE PARTIES AT THE TIME THE CONTRACT FOR THE SALE OF GOODS WAS ENTERED; THE MOTION TO DISMISS THE COUNTERCLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE BANK LACKED STANDING IN HIS ANSWER AND DID NOT OPPOSE THE BANK’S MOTION FOR SUMMARY JUDGMENT, THE JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STANDING ISSUE AND DENIED PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THAT GROUND (SECOND 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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

MOTHER’S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT). LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF’S FAILURE TO...