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DEFENDANTS DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MEANS AND MANNER OF PLAINTIFF’S WORK. LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined the Labor Law 200 and common law negligence causes of action were properly dismissed because the plaintiff’s injuries resulted from the means and manner of work and defendants did not exercise supervisory control  over plaintiff’s work:

“It is settled law that where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law”… . “Defendants moving for summary judgment on Labor Law § 200 and common-law negligence causes of action may thus show their entitlement to summary judgment by establishing that plaintiff’s accident resulted from the manner in which the work was performed, not from any dangerous condition on the premises, and [that] defendants exercised no supervisory control over the work’ “… . Here, defendants established that the wires hanging above the roof of the garage did not, as alleged by plaintiff, constitute a “tripping and walking hazard” along an area of the property leading to the work site; instead, the alleged defect arose from plaintiff’s method of performing the work by foregoing appropriate, authorized means of obtaining access to the utility pole and deciding to traverse the pitched roof of the garage over which the wires hung … . Inasmuch as defendants exercised no supervisory control over the injury-producing work, defendants established their entitlement to summary judgment dismissing the section 200 and common-law negligence causes of action … . Anderson v National Grid USA Serv. Co., 2018 NY Slip Op 07572, Fourth Dept 11-9-18

LABOR LAW-CONSTRUCTION LAW (DEFENDANTS DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MEANS AND MANNER OF PLAINTIFF’S WORK. LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT))

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PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined that the People did not provide a sufficient race-neutral reason for striking an African-American juror. The case had been remitted for a hearing on the issue:

We agree with defendant that the People failed to meet their burden at step two of the Batson analysis to articulate a “race-neutral reason” for striking the prospective juror … . On remittal, the prosecutor testified that he did not remember his reason for striking the prospective juror at issue, but stated that it had “nothing to do with race.” The prosecutor testified that, instead, “there was something on [the prospective juror’s] jury questionnaire . . . that [he] did not particularly like,” which would have provided a basis for exercising a peremptory challenge if he “could not clarify [that] issue” during voir dire. The prosecutor, however, had no recollection of the subject prospective juror’s actual questionnaire, which, apparently, was not preserved.

We conclude that the prosecutor’s articulated reason for striking the only African-American prospective juror was insufficient to satisfy the People’s burden. As noted, the prosecutor could not recall a specific reason for striking the prospective juror, but rather assured the court in a conclusory fashion that the challenge was not based on race and was based, instead, on “something” in the prospective juror’s questionnaire. Thus, the prosecutor’s explanation “amounted to little more than a denial of discriminatory purpose and a general assertion of good faith” … . Where, as here, “the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, . . . precedents require that [defendant’s] conviction be reversed” … . People v Davis, 2018 NY Slip Op 07569, Fourth Dept 11-9-18

CRIMINAL LAW (PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT))/JURORS (CRIMINAL LAW, PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT))/BATSON CHALLENGE (CRIMINAL LAW, JURORS, PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT))

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EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the employer’s motion for summary judgment in this third-party assault case was properly granted. After an employee (Hartfield) had been asked to leave for the day by the employer, the employee assaulted plaintiff in the parking lot. The doctrine of respondeat superior did not apply because the employee was not acting within the scope of her employment at the time of the assault:

… [D]efendant established as a matter of law that the doctrine of respondeat superior is inapplicable because Hartfield was not acting within the scope of her employment at the time of the assault. The doctrine of respondeat superior renders an employer “vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment”… .. Although the issue whether an employee is acting within the scope of his or her employment is generally a question of fact, summary judgment is appropriate “in a case such as this, in which the relevant facts are undisputed” … . Here, we conclude that defendant met its initial burden of establishing that Hartfield’s assault of plaintiff was not committed in furtherance of defendant’s business and was not within the scope of employment … . Stribing v Bill Gray’s Inc., 2018 NY Slip Op 07566, Fourth Dept 11-9-18

NEGLIGENCE (EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/EMPLOYMENT LAW (RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/BATTERY (EMPLOYMENT LAW, RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/RESPONDEAT SUPERIOR (NEGLIGENCE, BATTERY, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/THIRD PARTY ASSAULT (EMPLOYMENT LAW, RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))

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DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s statement during the plea allocution raised a viable affirmative defense which required further inquiry by the court. The error was considered on appeal under a rare exception to the preservation requirement:

Although defendant’s contention survives his valid waiver of the right to appeal … , he failed to preserve that contention for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on that ground … . This case nonetheless falls within the rare exception to the preservation requirement … . Defendant made a statement during the plea allocution that raised a potentially viable affirmative defense pursuant to Penal Law § 130.10 (1), thereby “giving rise to a duty on the part of the court, before accepting the guilty plea, to ensure that defendant was aware of that defense and was knowingly and voluntarily waiving it” … . We conclude that the court’s inquiry here was insufficient to meet that obligation … . People v Rosario, 2018 NY Slip Op 07564, Fourth Dept 11-9-18

CRIMINAL LAW (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/APPEALS (PLEA ALLOCUTION, DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/PLEA ALLOCUTION (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/GUILTY PLEA (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))

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MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT).

he Fourth Department, reversing (modifying Supreme Court), determined a motion seeking summary judgment on the Labor Law 241 (6) cause of action should not have been granted on a ground not raised in the motion. Defendants alleged the Labor Law 241 (6) cause of action should be dismissed because plaintiff was the sole proximate cause of his injuries. The judge, sua sponte, searched the record and granted summary judgment on a different ground:

… [T]he court erred in searching the record and granting summary judgment to plaintiff on his Labor Law § 241 (6) cause of action, and we therefore modify the order accordingly. Contrary to plaintiff’s assertion, although defendants did not advance their contention before the trial court, we conclude that the contention is properly before us because defendants lacked an opportunity to raise it at any time before this appeal … . Further, ” [a] motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense’ ” … . Here, the only issue raised with respect to the Labor Law § 241 (6) cause of action was on defendants’ motion, wherein they asserted that dismissal was warranted on the ground that plaintiff was the sole proximate cause of his injuries. The court therefore erred in granting summary judgment to plaintiff based on alleged violations of 12 NYCRR 23-1.7 (b) (1) (c) and 23-3.3 (c). Lord v Whelan & Curry Constr. Servs., Inc., 2018 NY Slip Op 07563, Fourth Dept 11-9-18

CIVIL PROCEDURE (LABOR LAW-CONSTRUCTION LAW, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/LABOR LAW-CONSTRUCTION LAW (CIVIL PROCEDURE, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/JUDGES   (CIVIL PROCEDURE, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/SUA SPONTE LABOR LAW-CONSTRUCTION LAW, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))

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PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT).

The First Department determined that a provision in a lease which required the petitioner tenant to pay the respondent landlord’s attorney’s fees even where the landlord was in default was unenforceable as unconscionable. Petitioner tenant had sued the landlord for failure to transfer shares in an apartment in accordance with petitioner’s husband’s wishes:

In 2012, petitioner’s husband, who owned the shares to another apartment in the building, agreed to transfer his shares to petitioner. Petitioner paid a transfer fee to respondent so that it would transfer the shares to her. She later sued respondent for default of the lease agreement and for statutory violations because respondent had not transferred the shares to her husband’s apartment to her. Respondent answered petitioner’s complaint and asserted a counterclaim for attorneys’ fees under paragraph 6(7)(c). * * *

… [W]we find that an attorneys’ fees provision which provides that the tenant must pay attorneys’ fees if it commences an action against the landlord based upon the default of the landlord is unconscionable and unenforceable as a penalty. Paragraph 6(7)(c) of the proprietary lease permits the landlord to recover attorneys’ fees when the tenant brings an action against the landlord even when the landlord is in default. To enforce such a provision would produce an unjust result because it would dissuade aggrieved parties from pursuing litigation and preclude tenant-shareholders from making meaningful decisions about how to vindicate their rights in legitimate instances of landlord default. Matter of Krodel v Amalgamated Dwellings Inc., 2018 NY Slip Op 07531, First Dept 11-8-18

LANDLORD-TENANT (CONTRACT LAW, PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT))/CONTRACT LAW (LANDLORD-TENANT, LEASE, CONTRACT LAW, PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT))/LEASE (CONTRACT LAW, UNCONSIONABILITY, PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT))/UNCONSIONABILITY (LANDLORD-TENANT, CONTRACT LAW, LEASE, PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT))

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (FIRST DEPT). ​

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted, noting that plaintiff’s argument in the reply papers should have been considered because it was a response to defendants’ opposition motion:

Plaintiff was injured when a metal shim plate affixed to a steel column, that was being installed as part of a temporary truss system, suddenly detached and hit him in the head. Plaintiff established that the accident was proximately caused by the undisputed failure of safety devices that were supposed to afford proper protection against the elevation-related risks that plaintiff faced during the installation of the column being hoisted into place … . The tack welds used to secure the metal shim plate to the column were “safety devices” for the purposes of Labor Law § 240(1) because they were intended to be a temporary measure to keep the shim plate attached to the column during installation … . The welds were to be removed once the column was in place, at which time the plates would be permanently bolted into place. The evidence established that the accident occurred when the welds failed, inasmuch as the shim plate, which weighed between 200 and 400 pounds, was welded on only one side of the metal column … . Thus, the shim plate “fell because of the inadequacy of a safety device. . .[that was] put in place as to give proper protection for” plaintiff, entitling him to partial summary judgment … .

The motion court should have considered plaintiff’s reply argument that the one-sided tack welds were insufficient to safely secure the shim plate to the column because it was made in response to defendants’ opposition to the motion … . Keerdoja v Legacy Yards Tenant, LLC, 2018 NY Slip Op 07537, First Dept 11-8-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT))/CIVIL PROCEDURE (REPLY PAPERS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT))/REPLY (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT))

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PLAINTIFF WAS NOT INVOLVED IN CONSTRUCTION WORK WHEN HE FELL, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT). ​

The Second Department determined defendant’s summary judgment motion on the Labor Law 240(1) cause of action was properly granted. Although plaintiff fell when attempting to replace light bulbs in a strobe light on top of a van, he was not involved in construction work:

Labor Law § 240(1) “does not cover routine maintenance done outside the context of construction work” … . The replacement of “components that require replacement in the course of normal wear and tear” constitutes routine maintenance … . At the time of his fall, the plaintiff was engaged in the task of replacing burnt out light bulbs, which constitutes routine maintenance and therefore falls outside of the scope of Labor Law § 240(1) … . Contrary to the plaintiff’s contention, his work did not take place in the context of a larger project which “encompassed activity protected under the statute … . Trotman v Verizon Communications, Inc., 2018 NY Slip Op 07483, Second Dept 11-7-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS NOT INVOLVED IN CONSTRUCTION WORK WHEN HE FELL, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))

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NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the school district’s and school bus company’s motions for summary judgment in this negligent supervision, third party assault, case should not have been granted. A six minute fight erupted on a school bus during which the two student plaintiffs were punched by another student. The school district did not demonstrate the student’s (Torres’s) violence was not foreseeable, and there was evidence the school aide observed the fight but did nothing to stop it:

Schools have a duty to adequately supervise the students in their care and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . The standard for determining whether a school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information … . Where the complaint alleges negligent supervision in the context of injuries caused by an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable… .

Here, the school defendants failed to establish, prima facie, that they had no specific knowledge or notice of Torres’s propensity to engage in the misconduct alleged. In support of their motion, the school defendants submitted, inter alia, the deposition testimony of assistant principal Sharon Flynn, who testified that Torres had a disciplinary record. When asked whether Torres’ prior disciplinary history involved violence, Flynn replied only, “Not that I remember.” Thus, the school defendants failed to sustain their prima facie burden of establishing that they had no actual or constructive notice of Torres’s propensity to engage in the misconduct alleged … . … [T]riable issues of fact also exist as to whether Torres’s dangerous conduct occurred in such a short span of time that no amount of supervision by the school defendants could have prevented the infant plaintiffs’ injuries … , whether the infant plaintiffs’ injuries were a foreseeable consequence of the security aide’s alleged failure to respond appropriately as the events unfolded … , and whether security personnel took “energetic steps to intervene” in the fight to stop Torres from injuring the infant plaintiff … . Palopoli v Sewanhaka Cent. High Sch. Dist., 2018 NY Slip Op 07441, Second Dept 11-7-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

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PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff allegedly caught her foot under a tire/wheel stop in defendants’ parking lot. The defendants did not present any evidence about when the wheel stop was last inspected:

The defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly dangerous condition. They failed to submit evidence as to when, prior to the accident, the tire/wheel stop at issue was last inspected … . Since the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied their motion, without regard to the sufficiency of the opposition papers … . Troina v Canyon Donuts Jericho Turnpike, Inc.. 2018 NY Slip Op 07482, Second Dept 11-7-18

NEGLIGENCE (PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL  (PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/WHEEL STOP (SLIP AND FALL, PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TIRE STOP (SLIP AND FALL, PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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