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CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT).

The Third Department determined claimant, decedent’s husband, was entitled to Workers’ Compensation death benefits. Decedent was found on the floor after she had complained of job-related stress and chest pains. Decedent’s death certificate indicated that she died from cardiac arrhythmia due to arteriosclerotic heart disease with obesity as a contributing factor:

Here, there is no dispute that claimant was entitled to the statutory presumption in that decedent suffered a cardiac arrest while working in her office and died shortly thereafter as a result, an event with no known witnesses … . The carrier’s cardiologist reviewed decedent’s medical records and concluded that while it was not certain exactly what happened, decedent’s cardiac arrest was most likely due to preexisting coronary artery disease and was not causally related, finding insufficient evidence that it was due to work-related stress … . This evidence was sufficient to rebut the presumption of compensability, shifting the burden to claimant to demonstrate a causal relationship … .​

Claimant presented the report and testimony of an internal medicine physician who reviewed decedent’s medical records and concluded that she had underlying asymptomatic cardiac atherosclerotic disease, and that her work-related stress was a “significant contributing factor” that caused her sudden cardiac death. He relied on the emergency department records and the fact that decedent had no known history of cardiac symptoms or treatment. While claimant’s physician acknowledged that decedent had other cardiac risk factors, such as obesity and a daily smoking habit, decedent’s “work-related illness need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness was a contributing factor in the decedent’s demise”… . Matter of Lavigne v Hannaford Bros. Co., 2017 NY Slip Op 06121, Third Dept 8-10-17

 

WORKERS’ COMPENSATION LAW (DEATH BENEFITS, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))/DEATH BENEFITS (WORKERS’ COMPENSATION LAW, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))/CARDIAC ARREST (WORKERS’ COMPENSATION LAW, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))

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FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a dissent, determined that defendant’s for cause challenge to a sworn juror should have been granted. Defendant was accused of killing his ex-wife, Powell. The juror was a partner in a law firm which represented Powell’s parents in their action to gain custody of Powell’s (and defendant’s) child.

… [W]here the challenging party acquires new information that had not been previously available after a juror has already been sworn, the trial court may entertain a challenge made for cause made before the first trial witness is sworn … . …

The governing law dictates that a juror should be discharged for cause where the juror is shown to have an implied bias; that is, if the juror shares a relationship with any person involved in the trial the nature of which is likely to preclude him or her from rendering an impartial verdict … .

… It bears noting that the juror did not personally represent Powell’s parents, and that the relationship shared by her firm and Powell’s family was purely of a professional nature. Nonetheless, the law firm owed Powell’s family a clear and paramount duty to represent their interests. As the juror recognized and stated in response to the court’s inquiry, the conflicts that arise therefrom — under the particular circumstances presented here — are imputed to her by law … . Further, the effect of the juror’s involvement cannot be said to be remote, as the verdict reached by this jury would inevitably affect the custody proceedings; indeed, by direct application of statutory law, a guilty verdict in this criminal action necessarily precluded an award of custody or visitation to defendant in that matter … .

As a matter of well-established law, a juror’s assurances of impartiality are inadequate to cure an implied bias … . People v Powell, 2017 NY Slip Op 06104, Third Dept 8-10-17

CRIMINAL LAW (JURORS, IMPLIED BIAS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AND ATTORNEY,  WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO A SWORN JUROR , AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/ATTORNEYS (IMPLIED BIAS, CRIMINAL LAW, JURORS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/IMPLIED BIAS (ATTORNEYS, CRIMINAL LAW, JURORS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))

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MASSACHUSETTS ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT).

The Third Department denied the applications of two Massachusetts attorneys (Fee and Lawless) for a waiver of the Judiciary Law requirement that they maintain a physical office in New York in order to practice in New York. The Third Department, following the 2nd Department and disagreeing with the 1st Department, determined the legal work performed by the attorneys to date was not null and void:

Upon our review of Judiciary Law § 470, we find that it unambiguously provides, without exception, that a prerequisite for a nonresident attorney to practice law in this state is that he or she maintain a physical law office here. In our view, Fee’s and Lawless’ requests for a waiver of the clear mandate of Judiciary Law § 470 “finds no support in the wording of the provision and would require us to take the impermissible step of rewriting the statute” … . In addition to holding that no statutory authority exists for granting the waivers, we also find that creating an avenue for nonresident attorneys to obtain a waiver of the law office requirement would amount to the type of rulemaking reserved for the Ct. of Appeals (see generally Judiciary Law § 53). Accordingly, Fee’s and Lawless’ applications are denied.

Finally, we reject plaintiff’s contention that all of the work performed by Fee and Lawless in this action should be declared void from the beginning. In reaching this conclusion, we adopt the 2nd Department’s reasoning in Elm Mgt. Corp. v Sprung (33 AD3d 753 [2006]) that “the fact that a party has been represented by a person who was not authorized or admitted to practice law under the Judiciary Law . . . does not create a ‘nullity’ or render all prior proceedings void per se” … , and we note our disagreement with the 1st Department’s cases holding to the contrary … . Stegemann v Rensselaer County Sheriff’s Off., 2017 NY Slip Op 06114, Third Dept 8-10-17

ATTORNEYS (OUT-OF-STATE ATTORNEYS, MASSACHUSETTS’ ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT))/JUDICIARY LAW (OUT-OF-STATE ATTORNEYS, MASSACHUSETTS’ ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT))

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FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED.

The Second Department, reversing defendant’s conviction, determined a for cause challenge to a juror should have been granted:

Here, prospective juror number 12 stated unequivocally that her experience as a crime victim, which she described as “traumatic,” would make it hard for her to be fair and impartial in this case. The prospective juror’s follow-up statement that she would “have to hear the case” before she could make a decision did not rehabilitate her initial response … .

Inasmuch as the sum of the prospective juror’s statements revealed a state of mind likely to preclude her from rendering an impartial verdict based upon the evidence adduced at the trial … , the challenge for cause should have been allowed … . People v Hutthinson, 2017 NY Slip Op 03774, 2nd Dept 5-10-17

 

CRIMINAL LAW (FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED)/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED)

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FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT).

The Second Department determined the plaintiff’s false arrest and false imprisonment complaint was properly dismissed. Although plaintiff appeared at the General Municipal Law § 50-h hearing, he did not answer all of the questions posed by the defendant city’s attorney and he did not invoke the Fifth Amendment. Because the 50-h hearing is a condition precedent to the suit against the city, dismissal was required:

The purpose of the statutory notice of claim requirement is to afford the public corporation an adequate opportunity to conduct an investigation into the circumstances surrounding an alleged occurrence and to explore the merits of the claim while information is readily available … . The oral examination of the claimant pursuant to General Municipal Law § 50-h serves to supplement the notice of claim and provides an investigatory tool to the public corporation, with a view toward settlement… . “Compliance with a demand for a General Municipal Law § 50-h examination is a condition precedent to the commencement of an action against a municipal defendant, and the failure to so comply warrants dismissal of the action”… .

Here, while the plaintiff appeared for the scheduled examination, he failed to answer many of the questions that were posed to him, and he never invoked his Fifth Amendment privilege against self-incrimination. Since he failed to assert his privilege at the time he was relying on it, he was unable to benefit from it … . Even if the plaintiff had properly asserted his privilege, he was obligated to schedule a new General Municipal Law § 50-h examination after his criminal case ended, but he failed to do so … . Instead, the plaintiff simply commenced an action in January 2016 without indicating the status of the criminal charges. Di Pompo v City of Beacon Police Dept., 2017 NY Slip Op 06059, Second Dept 8-9-17

MUNICIPAL LAW (50-H HEARING, FALSE ARREST, FALSE IMPRISONMENT, FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT))/50-H HEARING (MUNICIPAL LAW, FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT))/FALSE ARREST (50-H HEARING, FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT))/FALSE IMPRISONMENT (50-H HEARING, FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT))

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SUBSTANTIAL EVIDENCE SUPPORTED THE DETERMINATION THE UNWITNESSED ACCIDENT OCCURRED WHILE DECEDENT WAS PERFORMING WORK-RELATED DUTIES (THIRD DEPT).

The Third Department determined the deceased worker’s (claimant’s husband’s) statement to his wife indicating he fell from a ladder while doing his work on a subway car, coupled with a supervisor’s testimony decedent left work early holding his stomach, constituted substantial evidence supporting the claim for death benefits. Although the accident was not witnessed, and no report of the incident was made, the statutory presumption that the accident was work-related was not applicable:

Workers’ Compensation Law § 21 (1) provides a statutory presumption that “an unwitnessed accident which occurred ‘within the time and place limits’ of employment arose out of that employment” … . This presumption, however, “cannot be used to establish that an accident occurred” …  and “does not wholly relieve [a claimant] of the burden of demonstrating that the accident occurred in the course of, and arose out of, [his or] her employment” … . Significantly, whether a claimant’s injury resulted from an accident that arose out of and in the course of his or her employment is a factual issue for the Board to resolve, and its determination in this regard will not be disturbed if supported by substantial evidence … .

Although the Board applied the presumption set forth in Workers’ Compensation Law § 21 (1), we conclude that it is inapplicable here given that the issue in dispute is whether decedent was performing his duties at work when he sustained the injuries that led to his death, which is dispositive of whether the injuries arose out of and in the course of his employment. …

Decedent’s statement to claimant is the most direct evidence that he sustained his fatal injuries while performing his duties at work. Pursuant to Workers’ Compensation Law § 118, “[d]eclarations of a deceased employee concerning the accident shall be received in evidence and shall, if corroborated by the circumstances or other evidence, be sufficient to establish the accident and the injury.” Under the circumstances presented here, we find that claimant’s testimony, together with that of the supervisor who witnessed decedent holding his stomach, provided sufficient corroboration of decedent’s statement … . Matter of Silvestri v New York City Tr. Auth., 2017 NY Slip Op 06123, Third Dept 8-9-17

 

WORKERS’ COMPENSATION LAW (DEATH BENEFITS, UNWITNESSED ACCIDENT, SUBSTANTIAL EVIDENCE SUPPORTED THE DETERMINATION THE UNWITNESSED ACCIDENT OCCURRED WHILE DECEDENT WAS PERFORMING  WORK-RELATED DUTIES (THIRD DEPT))/DEATH BENEFITS (WORKERS’ COMPENSATION LAW, UNWITNESSED ACCIDENT, SUBSTANTIAL EVIDENCE SUPPORTED THE DETERMINATION THE UNWITNESSED ACCIDENT OCCURRED WHILE DECEDENT WAS PERFORMING  WORK-RELATED DUTIES (THIRD DEPT))

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DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

The Second Department determined a question of fact precluded defendant-abutting-property-owner’s (51 Remsen’s] motion for summary judgment in this sidewalk slip and fall case. The NYC Administrative Law imposed the burden of keeping the sidewalk safe on the abutting property owner, but the curb was excluded from the property owner’s responsibility. Plaintiff testified there was a gap between the curb and the sidewalk:

Administrative Code of the City of New York § 7-210(a) imposes a duty on “the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition,” and provides that the owner of said real property “shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.” “Sidewalk” is defined as “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians” … .

Here, the Supreme Court properly denied the motion of 51 Remsen for summary judgment dismissing the complaint and all cross claims insofar as asserted against it…. 51 Remsen’s expert opined that while the sidewalk was in good condition, set properly, and free of tripping defects, the curb was “problematic” because it did not meet City Department of Transportation height regulations. The plaintiff, however, testified at his deposition that there was a “[l]ittle gap” between the curb and the sidewalk. Viewing the evidence in the light most favorable to the plaintiff as the nonmovant …, 51 Remsen failed to eliminate all triable issues of fact regarding whether it had a duty to maintain the area of the plaintiff’s fall, and whether the alleged dangerous sidewalk condition, i.e., an improper setback from the curb, was attributable to its negligence and contributed to the plaintiff’s fall … . Gelstein v City of New York, 2017 NY Slip Op 06064, Second Dept 8-9-17

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NEGLIGENCE (SLIP AND FALL, SIDEWALKS, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))

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QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT).

The Second Department determined there was a question of fact whether a steel plate (covering a pole vault pit) unreasonably increased the risk of injury for high school football players. Plaintiff was tackled and struck the steel plate, which was several feet from the sideline:

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'”… . “Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks”… . Thus, “[a]n educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks” … .

Here, the Supreme Court properly determined that the defendants failed to establish their prima facie entitlement to judgment as a matter of law. The defendants failed to eliminate a triable issue of fact as to whether the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the participants … . Deserto v Goshen Cent. Sch. Dist., 2017 NY Slip Op 06058, Second Dept 8-917

 

NEGLIGENCE (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ASSUMPTION OF RISK,  QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT))/ASSUMPTION OF RISK (EDUCATION-SCHOOL LAW, QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT))/FOOTBALL (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT)) 

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MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT).

The Second Department determined the defendant’s (Queens Ballpark’s) motion to dismiss this slip and fall action, based on documentary evidence, was properly denied. The documents did not conclusively establish that defendant did not create the condition which caused the sidewalk slip and fall, and did not establish that had not assumed the landowner’s responsibility to maintain a safe sidewalk by the terms of the lease:

Pursuant to Administrative Code of the City of New York § 7-210(a), “the owner of real property abutting any sidewalk” has a duty “to maintain such sidewalk in a reasonably safe condition.” “Notwithstanding any other provision of law, the owner of real property abutting any sidewalk[] . . . shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition” (id. § 7-210[b]). “As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party”… . “However, where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, the tenant may be liable to a third party” … .

Here, the documentary evidence submitted by Queens Ballpark failed to utterly refute the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law … . Further, Queens Ballpark failed to establish conclusively that the plaintiff had no cause of action … . In her complaint, the plaintiff alleged that Queens Ballpark created the alleged defect in the sidewalk, and that Queens Ballpark was liable pursuant to Administrative Code § 7-210 for failing to maintain the sidewalk in a reasonably safe manner. Queens Ballpark’s evidence, namely, excerpts from its lease of the parking lot, photographs of the sidewalk, and an affidavit from the Executive Director of Ballpark Operations for Queens Ballpark, did not address whether Queens Ballpark created the alleged defect, or whether Queens Ballpark had entirely displaced the landowner’s duty to maintain the sidewalk such that Queens Ballpark could be held liable to the plaintiff under Administrative Code § 7-210 … . Torres v City of New York, 2017 NY Slip Op 06096, Second Dept 8-9-17

 

NEGLIGENCE (SLIP AND FALL, SIDEWALK, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/SLIP AND FALL (SIDEWALK, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS,  MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))

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DEFENDANT COLLEGE DEMONSTRATED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION WHICH INJURED PLAINTIFF, A PORTION OF A LIGHT FIXTURE IN PLAINTIFF’S ON-CAMPUS ROOM FELL ON HER (SECOND DEPT).

The Second Department determined defendant’s motion for summary judgment was properly granted. Plaintiff, a student living in defendant’s on-campus housing, was injured when a globe from an overhead light fell on her. The defendant college demonstrated it did not created the dangerous condition and did not have actual or constructive notice of the condition:

The plaintiff was a student at the defendant, Long Island University, and resided at its on-campus housing facility in Brooklyn. During the evening of November 5, 2010, a glass globe fell from a ceiling lighting fixture in the plaintiff’s room onto her head. The plaintiff subsequently commenced this action against the defendant to recover damages for personal injuries. Following discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the defendant’s motion, and the plaintiff appeals.

The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the condition that allegedly caused the plaintiff’s injuries or have actual or constructive notice of it … . Williamson v Long Is. Univ., 2017 NY Slip Op 06100, Second Dept 8-9-17

 

NEGLIGENCE (DEFENDANT COLLEGE DEMONSTRATED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION WHICH INJURED PLAINTIFF, A PORTION OF A LIGHT FIXTURE IN PLAINTIFF’S ON-CAMPUS ROOM FELL ON HER (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, DEFENDANT COLLEGE DEMONSTRATED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION WHICH INJURED PLAINTIFF, A PORTION OF A LIGHT FIXTURE IN PLAINTIFF’S ON-CAMPUS ROOM FELL ON HER (SECOND DEPT))

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