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THE “BUILDING” DEFENDANTS AND THE COMPANY WHICH INSTALLED AND MAINTAINED THE AIR CONDITIONING UNIT WHICH ALLEGEDLY LEAKED WATER ON THE FLOOR WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE; THE LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD; THE “BUILDING” DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE CONDITION; AND THE COMPANY WHICH INSTALLED AND MAINTAINED THE AIR CONDITIONER DID NOT SHOW IT DID NOT LAUNCH AND INSTRUMENT OF HARM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the summary judgment motions by several defendants in this slip and fall case should not have been granted in this slip and fall case. Plaintiff alleged she slipped on water dripping from and air conditioning unit in the break room. The landlord did not demonstrate it was an out-of-possession landlord. The defendants failed to show they did not have actual of constructive notice of the condition. Superior, the company which installed the air conditioner (HVAC system], did not show that it did not launch an instrument of harm:

An out-of-possession landlord and its agent may be liable for injuries occurring on its premises if it has “retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct” to perform maintenance and repairs … . … [The defendants] failed to establish … that they were out-of-possession landlords, that they did not assume a duty by course of conduct to maintain the area of the building at issue, including the HVAC system, and that they relinquished control over the premises to such a degree so as to extinguish their duty to maintain the premises … . * * *

… Superior’s submissions demonstrated that it entered into a contract with the … defendants’ general contractor to install the HVAC system, that the installation was completed approximately eight months before the plaintiff’s alleged slip and fall, and that, subsequently, it entered into a contract … to service and maintain at least a part of that HVAC system, and this contract was in effect at the time of the accident. Superior failed to establish … that the source of the leak at issue was not the HVAC system. Superior also failed to eliminate all triable issues of fact as to whether it launched an instrument of harm by creating the alleged recurring condition through its negligent installation or maintenance of the HVAC system … . Taliana v Hines REIT Three Huntington Quadrangle, LLC, 2021 NY Slip Op 05138, Second Dept 9-29-21

 

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THE DEFENDANT RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL HAD LAST BEEN INSPECTED PRIOR TO THE FALL; THEREFORE THE RESTAURANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE ALLEGED WET CONDITION (SECOND DEPT).
THE COMPLAINT ADEQUATELY ALLEGED THE TOLLING OF THE STATUTE OF LIMITATIONS PURSUANT TO THE CONTINUOUS REPRESENTATION DOCTRINE AND THE EXISTENCE OF THE FUNCTIONAL EQUIVALENT OF PRIVITY BETWEEN PLAINTIFF AND THE DEFENDANT ARCHITECT; SUPREME COURT REVERSED (SECOND DEPT).
Recovery Under the Doctrine of Quantum Meruit Was Proper—Proof of Damages Was Sufficient
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E-MAILS CONSTITUTED NONACTIONABLE OPINION AND POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE.
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FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT.
THE ARBITRATION AGREEMENT CALLED FOR NOTIFICATION OF AN ARBITRATION BY CERTIFIED MAIL; ALTHOUGH THE APPELLANT APPARENTLY NEVER PICKED UP THE MAILED NOTICE AND DID NOT APPEAR AT THE ARBITRATION, HER DUE PROCESS RIGHTS WERE NOT VIOLATED; THE PARTIES’ AGREEMENT ON THE METHOD OF SERVICE CONTROLS (SECOND DEPT).

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