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EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION.

The First Department determined defendants’ summary judgment motion in this slip and fall case was properly denied. Although there was a snow storm in progress at the time of the fall, there was evidence plaintiff slipped on a sheet of ice which, because the temperature was well below freezing, could not have formed during the storm:

Here, as plaintiffs concede, there was a storm in progress at the time of the accident. Thus, the burden shifted to plaintiffs to demonstrate the existence of a triable issue of fact as to whether Sterling created or exacerbated the hazardous condition through its snow removal activities. Plaintiffs have met that burden, as they have both testified that they saw an ice patch at the scene of the accident. * * * This evidence supports plaintiffs’ argument that ice could not have formed after the snowclearing efforts by [defendant’s] employees. Accordingly, an issue of fact was raised as to whether [defendant’s] actions created or exacerbated a hazardous condition by employing a snowblower to remove snow without taking further steps to de-ice the sidewalk … . Baumann v Dawn Liquors, Inc., 2017 NY Slip Op 01986, 1st Dept 3-21-17

NEGLIGENCE (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)/SLIP AND FALL (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)/STORM IN PROGRESS DOCTRINE (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)/SIDEWALKS (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)

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A SUPPRESSION MOTION CANNOT BE DENIED ON A GROUND NOT RAISED BY THE PEOPLE (FIRST DEPT).
A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION REQUIRING CONSENT TO WARRANTLESS SEARCHES; IN THE PLEA PROCEEDINGS, DEFENDANT ADMITTED PUNCHING THE VICTIM; THE PROBATION CONDITION ALLOWING SEARCHES FOR DRUGS AND WEAPONS HAD NO CONNECTION TO THE UNDERLYING OFFENSE (FIRST DEPT).
THE JUDGE SHOULD NOT HAVE REJECTED PLAINTIFF’S EXPERT’S OPINION BECAUSE SHE WAS A REGISTERED NURSE, NOT A DOCTOR; THE REGISTERED NURSE WAS QUALIFIED TO OFFER AN OPINION ON FALL PREVENTION; AN EXPERT’S QUALIFICATIONS SPEAK TO THE WEIGHT OF THE OPINION EVIDENCE, NOT ADMISSIBILITY (FIRST DEPT).
PLAINTIFF WAS DEEMED TO HAVE READ THE INFORMATION WHICH WAS HYPERLINKED; THEREFORE PLAINTIFF WAS DEEMED TO HAVE AGREED TO ARBITRATION (FIRST DEPT).
PLAINTIFF, WHO SOLD GOODS TO NEW JERSEY COMPANIES FOR WHICH IT WAS NOT FULLY PAID, FAILED TO DEMONSTRATE NEW YORK JURISDICTION; FACTS PLED DID NOT DEMONSTRATE LONG-ARM JURISDICTION; SITUS OF THE INJURY WAS NEW JERSEY, NOT NEW YORK.
DEFENDANT HAD WITHHELD PAYMENT ON THE CONTRACT AS AN OFFSET FOR THE LIQUIDATED DAMAGES PROVISION OF THE CONTRACT; THE AWARD OF LIQUIDATED DAMAGES TO THE DEFENDANT THEREFORE CONSTITUTED A DOUBLE RECOVERY (FIRST DEPT). ​
PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE KNOWLEDGE OF THE SNOW AND ICE CONDITION IN THIS SLIP AND FALL CASE, AND THE SNOW REMOVAL CONTRACTOR DID NOT OFFER ANY EVIDENCE OF THE STATE OF THE AREA WHERE PLAINTIFF FELL, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED.

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