You are here: / / QUESTIONS OF FACT WHETHER DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE RAISED...
,

QUESTIONS OF FACT WHETHER DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE RAISED SIDEWALK FLAG AND WHETHER THE DEFECT WAS TRIVIAL IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact about whether defendant had constructive notice of a raised sidewalk flag and whether the defect was trivial in this slip and fall case:

Although the property manager states that the premises were regularly inspected, and any condition observed would have been reported to him, reference to a generalized inspection practice “is insufficient to satisfy defendant[‘s] burden of establishing that [he] lacked notice of the alleged condition of the sidewalk prior to the accident” … .

As a general rule, whether a defect is trivial depends on “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . The relevant inquiry is whether the defect was “difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Although defendant relies on photographs to prove his defense that the defect is trivial, summary judgment should not be granted where, as here, “the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive” … . Trinidad v Catsimatidis, 2021 NY Slip Op 00047, First Dept 1-5-21

 

You might also like
Sheetrock Resting on Blocks Satisfied Height Differential in Labor Law 240(1) Action
HOME DEPOT RENTED A TRUCK TO A MAN WHO DROVE THE TRUCK INTO A CROWD OF PEDESTRIANS AND BICYCLISTS; THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR NEGLIGENT ENTRUSTMENT; THE MOTION COURT IMPROPERLY TREATED THE MOTION TO DISMISS AS A MOTION FOR SUMMARY JUDGMENT; ALTHOUGH THE ALLEGATIONS IN THE COMPLAINT ARE DEEMED TRUE FOR A MOTION TO DISMISS, HERE THOSE ALLEGATIONS WERE PROPERLY REFUTED BY AFFIDAVITS AND DEPOSITIONS SUBMITTED BY HOME DEPOT (FIRST DEPT).
A PLAINTIFF’S STIPULATED SETTLEMENT WITH THE INSURED ACCOMPANIED BY A COVENANT NOT TO EXECUTE THE JUDGMENT AND AN ASSIGNMENT OF THE INSURED’S CLAIMS AGAINST THE INSURER IS NOT A “RELEASE;” THE INSURER STILL HAS A DUTY TO INDEMNIFY (FIRST DEPT).
WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS.
THE RECENT US SUPREME COURT CASE HOLDING THAT A STATE MUST CONSENT TO SUIT AGAINST IT IN A SISTER STATE DID NOT AFFECT THE DOCTRINE OF “WAIVER OF SOVEREIGN IMMUNITY;” HERE NEW JERSEY WAIVED THE DOCTRINE BY PARTICIPATING IN THE FIRST TRIAL OF THIS TRAFFIC ACCIDENT CASE (FIRST DEPT).
ALTHOUGH THE PERSON WHO ALLEGEDLY ASSAULTED PLAINTIFF AT JFK AIRPORT WAS AN EMPLOYEE OF AMERICAN AIRLINES, HE WAS NOT ON DUTY AT THE TIME OF THE INCIDENT; THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).
THE PROBATION-CONDITION REQUIRING DEFENDANT TO PAY THE MANDATORY SURCHARGE AND COURT FEES WAS STRUCK BECAUSE DEFENDANT IS INDIGENT; THE FACIAL CONSTITUTIONAL CHALLENGES TO PROBATION CONDITIONS WERE NOT PRESERVED (FIRST DEPT).
DAMAGES UNDER THE FAIR CREDIT REPORTING ACT ARE NOT PENALTIES, INSURANCE POLICY EXCLUSION OF COVERAGE FOR PENALTIES DID NOT APPLY.

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

THE WRONGFUL DEATH COMPLAINT ALLEGED PORT AUTHORITY WAS NEGLIGENT IN FAILING... AN ANSWER TO AN AMBIGUOUS QUESTION ON AN APPLICATION FOR INSURANCE COVERAGE...