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PLAINTIFF FELL INTO A THREE-FEET-DEEP HOLE, QUESTION OF FACT WHETHER THE HOLE WAS AN OPEN AND OBVIOUS CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment should not have been granted in this slip and fall case. Plaintiff fell into a three-feet-deep hole near where a fence was being installed: “A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under […]

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LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION, SERVED THREE YEARS AFTER THE DEVELOPMENTALLY DELAYED CHILD’S BIRTH, SHOULD HAVE BEEN DEEMED TIMELY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court, determent the late notice of claim in this medical malpractice action should have been deemed timely served. The notice of claim was served in 2012 and the plaintiff-child was born in 2009. It became apparent in 2010 that the child was unable to bear weight on her legs and […]

DEFENDANTS’ PROOF DEMONSTRATED THE SNOW STORM WAS OVER 12 HOURS BEFORE PLAINTIFF’S SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants did not demonstrate the applicability of the storm in progress rule in this ice and snow slip and fall case. Therefore defendants motion for summary judgment should not have been granted: The climatological data submitted by the defendants showed that there was an accumulation of approximately seven […]

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DELIBERATE ACTS BY DEFENDANT’S ATTORNEY RESULTED IN THE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s attorney’s deliberate acts required denial of defendant’s motion to vacate the default: The affirmations of the defendant’s attorney reveal that he made a conscious decision not to submit any papers in opposition to the plaintiff’s motion even though the Supreme Court gave him ample opportunity to do […]

DEFENDANTS DID NOT SUBMIT EVIDENCE SHOWING WHEN THE SIDEWALK WAS LAST INSPECTED IN THIS SLIP AND FALL CASE, 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 sidewalk slip and fall case should not have been granted. Defendants offered no evidence of when the sidewalk was last inspected: In a trip and fall case, a defendant moving for summary judgment has the initial burden of making a prima […]

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ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT WHICH THEREFORE BOUND THE PLAINTIFF TO ITS TERMS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney had apparent authority to sign a stipulation of settlement which was therefore binding on plaintiff: “A stipulation made by the attorney may bind a client even where it exceeds the attorney’s actual authority if the attorney had apparent authority to enter into the stipulation” … . Here, […]

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TENANT’S ALLEGED FAILURE TO INSURE THE PROPERTY AND ALLEGED IMPROPER ASSIGNMENT OF THE LEASE ARE NOT DEFAULTS THAT CAN BE CURED, THEREFORE THE TENANT IS NOT ENTITLED TO A YELLOWSTONE INJUNCTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the tenant was not entitled to a Yellowstone injunction because the alleged failure to insure the property and the alleged improper assignment of the lease were not curable defaults: The purpose of a Yellowstone injunction, which tolls the period in which a tenant may cure a claimed violation of the lease, is […]

THAT THE LADDER WAS NOT DEFECTIVE DID NOT MATTER, THE LADDER WAS NOT AN ADEQUATE SAFETY DEVICE UNDER THE CIRCUMSTANCES AND THE LADDER WAS NOT ADEQUATELY SECURED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted. The ladder was deemed an inadequate safety device because plaintiff had to step off the ladder onto display cases to do his work. The fact that the ladder was not defective was not dispositive […]

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EVEN WHERE A CAUSE OF ACTION HAS NOT BEEN PROPERLY PLED THE COURT WILL SEARCH THE RECORD TO DETERMINE WHETHER THERE IS AN ACTIONABLE CLAIM IN RESPONSE TO A DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, HERE IN THIS SLIP AND FALL CASE THERE WAS NO EVIDENTIARY SUPPORT FOR CERTAIN CAUSES OF ACTION AGAINST THE BUILDING OWNER (FIRST DEPT).

The First Department noted that, even where a cause of action is not properly pled, on a motion for summary judgment it must search the record to determine whether there is an actionable claim. In this slip and fall case, the building owner was defendant 90 Merrick and the employer of the janitor who allegedly mopped […]

QUESTION OF FACT WHETHER DEFENDANT IN THIS SLIP AND FALL CASE HAD CONSTRUCTIVE KNOWLEDGE OF MELTED ICE CREAM ON THE STAIRS, THERE WAS EVIDENCE THE ICE CREAM HAD BEEN THERE FOR AT LEAST THREE HOURS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive notice of melted ice cream which had spilled onto interior stairs in this slip and fall case. There was evidence the ice cream was on the step for at least three hours: Although defendants’ superintendent testified that he […]

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