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SMALL INFORMAL LAW FIRM PROPERLY DISQUALIFIED BECAUSE AN ASSOCIATE PREVIOUSLY REPRESENTED THE OPPOSING PARTY 3RD DEPT.

The Third Department determined a law firm was properly disqualified from representing mother because an associate at the firm had previously represented father in a case involving the same child:

We … address whether, due to the associate’s former attorney-client relationship with the father and current employment with the law firm, the principal is also precluded from representing the mother. While the principal has apparently never represented the father, “where an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client, all the attorneys in that firm are likewise precluded from such representation” … . Application of this rule creates a rebuttable presumption that the law firm should be disqualified … . To that end, “[a] court must examine the circumstances of the particular case and, if it is not clear as a matter of law that disqualification of the entire firm is required, the firm should be given an opportunity to rebut the presumption” … . The presumption may be rebutted by proof that “any information acquired by the disqualified lawyer [i.e., the associate] is unlikely to be significant or material in the [subject] litigation” and by evidence that the law firm screened the associate from receipt and dissemination of information subject to the attorney-client privilege … . * * *

We are mindful here that “[d]oubts as to the existence of a conflict of interest must be resolved in favor of disqualification”… , and that “disqualification avoids any suggestion of impropriety and preserves [the client’s] expectation of loyalty” … . Under these facts, we are unpersuaded by the principal’s assertion that a sufficient firewall exists to separate his work on behalf of the mother from the associate so as to screen her from the receipt of information that is protected by the attorney-client privilege in this small, informal law office environment. As the principal has not rebutted the presumption that all attorneys in his law firm are disqualified from representing the mother, the father’s motion was properly granted, and Family Court’s order will not be disturbed. Matter of Yeomans v Gaska, 2017 NY Slip Op 05786, 3rd Dept 7-20-17

ATTORNEYS (CONFLICT OF INTEREST, SMALL INFORMAL LAW FIRM PROPERLY DISQUALIFIED BECAUSE AN ASSOCIATE PREVIOUSLY REPRESENTED THE OPPOSING PARTY 3RD DEPT)/CONFLICT OF INTEREST (ATTORNEYS, SMALL INFORMAL LAW FIRM PROPERLY DISQUALIFIED BECAUSE AN ASSOCIATE PREVIOUSLY REPRESENTED THE OPPOSING PARTY 3RD DEPT)

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ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT.

The Third Department determined abuse findings were supported by substantial evidence, which was entirely hearsay. The court explained how hearsay is evaluated in the context of a ruling by an administrative agency, here the Justice Center for the Protection of People with Special Needs. Petitioner is an employee of the Office of People with Developmental Disabilities and was accused of abusing a service recipient. It was alleged petitioner held the service recipient down while another employee, Roberts, kicked her:

Petitioner contends that hearsay evidence cannot prevail over credible sworn testimony adduced at an administrative hearing. However, it is well established that “an administrative determination may be based entirely upon hearsay evidence provided such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted” … . In addition, an administrative determination may be based entirely on such hearsay evidence even where there is contrary sworn testimony … .

Here, there is substantial evidence in the record to support the Justice Center’s final determination that petitioner engaged in conduct constituting category three abuse. In interviews conducted by an investigator, three eyewitnesses to the incident — two residents of the unit and Monica Sutton, a service provider — made consistent statements about the material facts of the incident, specifically, that petitioner restrained the service recipient on the floor while she was kicked by Roberts. Although the eyewitness statements received at the hearing were hearsay, there were sufficient indicia of their reliability. The accounts of the eyewitnesses, who were interviewed separately, are consistent with each other, and, as noted by the Justice Center, were “unwavering as to the core allegations.” Further, the statements from the residents were obtained in personal interviews conducted only three days after the incident, and, although Sutton’s statement was obtained approximately four months after the incident, it is corroborated by the written report of abuse that she made on the date of the incident. Notably, petitioner and Roberts each testified that Sutton witnessed the incident and, although each denied that Roberts kicked the service recipient, both admitted that the service recipient fell to the floor, where she grabbed Roberts by the legs, Roberts moved her legs in an effort to free herself, and petitioner touched or held the service recipient by the shoulder when she was on the floor; these admissions are consistent with the eyewitness reports. Accordingly, the hearsay evidence in the record was sufficiently reliable to provide substantial evidence to support the Justice Center’s determination. Matter of Watson v New York State Justice Ctr. for The Protection of People With Special Needs, 2017 NY Slip Op 05780, 3rd Dept 7-20-17

ADMINISTRATIVE LAW (EVIDENCE, HEARSAY, ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT)/EVIDENCE (ADMINISTRATIVE LAW, HEARSAY, ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT)/HEARSAY (ADMINISTRATIVE LAW, ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT)

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DEVELOPMENT RIGHTS CONSTITUTE REAL PROPERTY WHICH CAN BE SOLD PURSUANT TO RPAPL 1602 2ND DEPT.

The Second Department, in a full-fledged opinion by Justice Connolly, in a matter of first impression, determined that development rights constituted real property within the meaning of Real Property Actions and Proceedings Law (RPAPL) 1602, but that the sale of the development rights in this case would not be “expedient” and therefore would violate RPAPL 1602. Here three of four siblings wanted to sell the development rights to the family farm in order to preserve it as a farm. One of the siblings, the defendant, objected to the idea. Overruling Supreme Court, the Second Department held that development rights constitute real property which can be sold pursuant to RPAPL 1602. But, because there was no purchaser for the development rights, the plaintiffs had not demonstrated the sale was “expedient” within the meaning of the statute:

… [D]evelopment rights, as that term was understood by the parties to this action, are clearly “real property, or a part thereof” (RPAPL 1602). Indeed, the Court of Appeals has held that development rights constitute interests within the metaphorical “bundle of rights” that comprise fee interests in real property (see Seawall Assocs. v City of New York, 74 NY2d 92, 109 …). In Seawall, the Court of Appeals observed that “[t]here can be no question that the development rights which have been totally abrogated by the local law are, standing alone, valuable components of the bundle of rights’ making up their fee interests,” …  Applying the bundle-of-rights metaphor to the case at bar, by seeking court approval to convey away the right to build as many homes as are allowed by zoning and planning regulations, the plaintiffs are seeking to convey those portions of the bundle of rights comprising the maximum development capacity of the property. Moreover, in drafting RPAPL 1602, the Legislature gave courts the authority to compel the mortgage, lease, or sale of “real property, or a part thereof” … , without placing any limitations on which “parts” of the bundle of rights comprising real property are subject to the statute. “Ordinarily, where the Legislature in enacting a statute utilized general terms, and did not, either expressly or by implication, limit their operation, the court will not impose any limitation” … . Hahn v Hagar, 2017 NY Slip Op 05710, 2nd Dept 7-19-17

REAL PROPERTY (DEVELOPMENT RIGHTS CONSTITUTE REAL PROPERTY WHICH CAN BE SOLD PURSUANT TO RPAPL 1602 2ND DEPT)/DEVELOPMENT RIGHTS (REAL PROPERTY, DEVELOPMENT RIGHTS CONSTITUTE REAL PROPERTY WHICH CAN BE SOLD PURSUANT TO RPAPL 1602 2ND DEPT)

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QUESTION OF FACT WHETHER DEFENDANT DRIVER WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this rear-end collision case should not have granted. Although plaintiff and defendant alleged defendant’s car was stopped behind  plaintiff’s car before defendant’s car was pushed into plaintiff’s car after defendant’s car was struck from behind by Vitale’s car, Vitale’s affidavit alleged defendant’s car collided with plaintiff’s car before Vitale collided with defendant. Therefore there was a question of fact whether defendant was comparatively negligent:

Here, in support of their motion, the defendants submitted, inter alia, a transcript of the deposition testimony of the plaintiff driver and the defendant driver. The plaintiff driver testified at his deposition that the vehicle that he was operating had been stopped for a red traffic light for about 30 seconds when the defendants’ vehicle struck it in the rear. Prior to the accident, the plaintiff driver had observed the defendants’ vehicle stop behind his vehicle without touching it. The defendant driver attested that the vehicle that he was operating was stopped four feet behind the plaintiffs’ stopped vehicle when it was struck in the rear by Vitale’s vehicle. As a result, the defendants’ vehicle was propelled forward into the rear of the plaintiffs’ vehicle. Under the circumstances, the defendants met their initial burden as the movants by demonstrating, prima facie, that their stopped vehicle was propelled forward into the plaintiffs’ vehicle after their vehicle was struck in the rear by a third vehicle, and that the defendant driver was not at fault in the happening of the accident … .

In opposition to the motion, the plaintiffs submitted, inter alia, Vitale’s affidavit. Vitale’s account of the accident differed from the parties’ account of the accident, and it raised triable issues of fact as to whether the defendants’ vehicle struck the plaintiffs’ vehicle before Vitale’s vehicle struck the defendants’ vehicle and whether the defendant driver was comparatively at fault … .Hasan Sharif Williams v Sala, 2017 NY Slip Op 05762, 2nd Dept 7-19-17

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR-END COLLISIONS, QUESTION OF FACT WHETHER DEFENDANT DRIVER WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, QUESTION OF FACT WHETHER DEFENDANT DRIVER WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/REAR-END COLLISIONS (QUESTION OF FACT WHETHER DEFENDANT DRIVER WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

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PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendant raised a question of fact whether the driver of the car in which plaintiff was a passenger was comparatively negligent. Therefore plaintiff passenger’s summary judgment motion should not have been granted:

“To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault” … . Thus, “a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident” … . The issue of comparative fault is generally a question for the jury to decide … . In rear-end accident cases, just because a plaintiff is a passenger in the lead vehicle, the liability of the rear vehicle is not automatically established. Such a plaintiff moving for summary judgment on the issue of liability “must meet the twofold burden of establishing that he or she was free from comparative fault and was, instead, an innocent passenger, and, separately, that the operator of the rear vehicle was at fault. If the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition, . . . summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger” …

Here, the injured plaintiff established her prima facie entitlement to judgment as a matter of law through the submission of her affidavit which demonstrated that she was not negligent in the happening of the accident, as she was an innocent passenger, and that the actions of the defendant driver, Welna, were the sole proximate cause of the accident… . However, in opposition, the defendants raised a triable issue of fact as to whether Nicole Ortiz [the lead driver] contributed to the happening of the accident by the submission of Welna’s affidavit, which alleged that she violated Vehicle and Traffic Law § 1163 by stopping abruptly in the intersection to turn left without signaling … . Ortiz v Welna, 2017 NY Slip Op 05744, 2nd Dept 7-19-17

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/TRAFFIC ACCIDENTS, REAR END COLLISIONS, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/COMPARATIVE NEGLIGENCE (REAR END COLLISIONS, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/REAR END COLLISIONS (PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/VEHICLE AND TRAFFIC LAW (REAR END COLLISIONS, LEAD DRIVER’S ALLEGED FAILURE TO SIGNAL AND SUDDEN STOP RAISED A QUESTION OF FACT, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT) 

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STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT.

The Second Department determined defendant Home Depot’s motion for summary judgment in this slip and fall case was properly denied. The storm in progress rule did not apply because the precipitation stopped 12 hours before the fall, and the temperature dipped below freezing 10 hours before the fall:

Home Depot failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that there was a storm in progress at the time of the injured plaintiff’s accident or that it did not have a reasonable opportunity after the cessation of the storm to remedy the allegedly dangerous condition … . The climatological data submitted by Home Depot showed that there was an accumulation of about three inches of snow, which had ceased to fall by 7:00 p.m. on January 18, 2004, about 12 hours prior to the accident, and that the temperature dropped to below freezing by 9:00 p.m., about 10 hours prior to the accident, and remained below freezing through the time of the accident. Thus, Home Depot failed to establish, prima facie, that it did not have a reasonable time to ameliorate the snow and ice condition in the parking lot … . Morris v Home Depot USA, 2017 NY Slip Op 05717, 2nd Dept 7-19-17

NEGLIGENCE (SLIP AND FALL, STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT)/SLIP AND FALL (STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT)/STORM IN PROGRESS (STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT)

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QUESTION OF FACT WHETHER HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT.

The Second Department, reversing Supreme Court, determined there was a question of fact whether a latent defect was actionable under the doctrine of res ipsa loquitur. An outside step flipped up when plaintiff stepped on it, causing plaintiff to fall. The underside of the step was rotten and the nails didn’t hold. Apparently the condition of the step was not visible until the underside was exposed:

… [P]laintiff raised a triable issue of fact as to the application of the doctrine of res ipsa loquitur … . “Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event” … . A plaintiff makes a prima facie case of negligence under res ipsa loquitur by establishing three elements: ” (1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff'” … . Res ipsa loquitur does not create a presumption of negligence; rather, it is a rule of circumstantial evidence that permits, but does not require, the jury to infer negligence … ​

Here, the defendant contends that the plaintiff failed to raise an issue of fact as to the applicability of the doctrine because the homeowner did not have exclusive control over the deck steps. However, the concept of exclusive control does not require rigid application, since the general purpose of the element is to indicate from the circumstances that it was probably the negligence of the defendant, rather than another, which caused the accident … . Although there was evidence that other guests used the deck steps, the steps were located on private residential property, not an area open to the general public … . Under these circumstances, the plaintiff raised a triable issue of fact as to the homeowner’s exclusive control of the deck step and whether an inference of negligence is warranted under the doctrine of res ipsa loquitur … . Marinaro v Reynolds, 2017 NY Slip Op 05714, 2nd Dept 7-19-17

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/SLIP AND FALL (QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/LATENT DEFECT  (SLIP AND FALL, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/RES IPSA LOQUITUR (SLIP AND FALL, LATENT DEFECT, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)

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DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT.

The Second Department, reversing Supreme Court, determined the defendants demonstrated the defective tile which caused plaintiff’s slip and fall constituted a trivial defect which was not actionable:

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . Here, the evidence submitted by the defendants in support of their motion included photos of the alleged defective condition as identified by the plaintiff, a damaged piece of tile, as well as measurements placing the depression at the damaged tile to be, at most, one-eighth of an inch. These photographs, along with the plaintiff’s description of the time, place, and circumstance of the injury, established, prima facie, that the alleged defect was trivial as a matter of law, and therefore, not actionable … . Kavanagh v Archdiocese of the City of N.Y., 2017 NY Slip Op 05711, 2nd Dept 7-19-17

NEGLIGENCE (SLIP AND FALL, TRIVIAL DEFECT, DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT)/SLIP AND FALL (TRIVIAL DEFECT, DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT)/TRIVIAL DEFECT (SLIP AND FALL, DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT)

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DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendants did not demonstrate the raised brick over which plaintiff allegedly tripped was a trivial defect or an open and obvious defect:

The defendant failed to establish, prima facie, that the alleged defect was trivial as a matter of law. “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In support of its motion, the defendant submitted, inter alia, transcripts of the deposition testimony of the plaintiff and the Director of Horticulture of the defendant, the affidavit of an expert witness, and two photographs that the plaintiff claimed showed her lying on the walkway shortly after her accident but did not portray the raised brick on which she allegedly fell. Viewed in the light most favorable to the plaintiff as the nonmovant …, the evidence submitted by the defendant failed to eliminate all triable issues of fact as to the dimensions of the alleged defect, and failed to establish that the condition was trivial and, therefore, not actionable … . The defendant also failed to make a prima facie showing that the alleged raised brick was an open and obvious condition that is inherent to the nature of the property and could be reasonably anticipated by those using it … . Furthermore, the defendant failed to demonstrate, prima facie, that it lacked constructive notice of the allegedly raised brick … . Chojnacki v Old Westbury Gardens, Inc., 2017 NY Slip Op 05706, 2nd Dept 7-191-17

NEGLIGENCE (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/TRIVIAL DEFECT (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/OPEN AND OBVIOUS (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

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DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE 2ND DEPT.

The Second Department determined defendants were properly granted summary judgment in this ice and snow slip and fall case. The defendants demonstrated there was a storm in progress and their snow removal efforts did not create or exacerbate the condition:

” Under the so-called storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'” … . “However, even if a storm is ongoing, once a property owner elects to remove snow or ice, it must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting their deposition testimony and certified weather reports, which demonstrated that there was a storm in progress at the time of the plaintiff’s accident, and that their efforts to prevent ice accumulation neither created a hazardous condition nor exacerbated a natural hazard created by the storm … . Bradshaw v PEL 300 Assoc., 2017 NY Slip Op 05701, 2nd Dept 7-19-17

NEGLIGENCE (DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE)/SLIP AND FALL (DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE)/STORM IN PROGRESS (SLIP AND FALL, DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE)

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