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Defendant’s Burdens Re: Summary Judgment in Slip and Fall Case—Notice and Act of God​

In affirming the denial of defendant’s motion for summary judgment in a water-on-floor slip and fall case, the Second Department explained that a defendant can not point to gaps in the plaintiff’s case to meet its affirmative proof burdens re: notice and “act of God:”

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of establishing, prima facie, that it neither created the dangerous condition that allegedly caused the underlying accident nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it…. This burden cannot be satisfied merely by pointing to gaps in the plaintiff’s case … . * * *

With respect to the issue of whether the … defendants created a hazardous condition, they failed to establish their prima facie entitlement to judgment as a matter of law based on their contention that the water condition at the premises was caused by an act of God. For a loss to be considered the result of an act of God, human activities cannot have contributed to it in any degree… ..  Sawicki v GameStop Corp, 2013 NY Slip Op 03657, 2nd Dept, 5-22-13

 

 

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IF A JUDGE DIRECTS THAT A PROPOSED JUDGMENT BE SETTLED OR SUBMITTED ON NOTICE, THE JUDGMENT MUST BE SUBMITTED FOR SIGNATURE WITHIN 60 DAYS OR THE MATTER WILL BE DEEMED ABANDONED PURSUANT TO 22 NYCRR 202.48; HERE, HOWEVER, THE JUDGE DID NOT DIRECT THAT THE PROPOSED JUDGMENT BE SUBMITTED ON NOTICE, SO 22 NYCRR 202.48 AND THE 60-DAY DEADLINE DID NOT APPLY (SECOND DEPT).
Arrest Based on Out of State Warrant Not Authorized​
THE PROPERTY OWNER, MCWHITE, HAD BEEN DISMISSED FROM THE ORIGINAL FORECLOSURE ACTION AND HER INTEREST IN THE PROPERTY HAD NOT BEEN EXTINGUISHED BY THE JUDGMENT OF FORECLOSURE WHICH FALSELY NAMED HER AS A DEFENDANT; THE REFEREE’S DEED-HOLDER DID NOT STATE A CAUSE OF ACTION FOR REFORECLOSURE AGAINST MCWHITE AND MCWHITE WAS ENTITLED TO SUMMARY JUDGMENT ON HER QUIET TITLE CAUSE OF ACTION (SECOND DEPT).
IN THIS SLIP AND FALL CASE, THE DEFECT IN THE STAIRWAY WAS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).
INSPECTION WOULD NOT HAVE DISCOVERED THE LATENT DEFECT, A SNOW COVERED HOLE IN AN AREA NOT USED AS A WALKWAY, THE LANDOWNER WAS ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT).
Warrantless Search of Parolee’s Car by Detective Was Valid–Detective Was Effectively Functioning As a Parole Officer, Was Aware of an Arrest Warrant Based Upon Defendant’s Alleged Parole Violations, and Was Aware the Defendant, as a Parolee, Had Consented In Writing to the Search of His Person and Property
THE COMPLAINT SHOULD HAVE BEEN DISMISSED BECAUSE PLAINTIFF HAD NOT YET BEEN APPOINTED ADMINISTRATOR OF PLAINTIFF’S DECEDENT’S ESTATE; PLAINTIFF IS FREE TO COMMENCE A NEW ACTION WITHIN SIX MONTHS PURSUANT TO CPLR 205 (A) UPON ISSUANCE OF LETTERS OF ADMINISTRATION (SECOND DEPT).
APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT).

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