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PLAINTIFF ALLEGED SHE TRIPPED ON A TWIG ON THE SIDEWALK WHICH WAS NOT ADEQUATELY ILLUMINATED; DEFENDANT, IN HER MOTION FOR SUMMARY JUDGMENT, DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITIONS OR THAT THE CONDITIONS WERE NOT A PROXIMATE CAUSE OF THE FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant property owner’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged she tripped on a twig on the sidewalk in an area which was not adequately illuminated. The defendant, in her motion papers, did not demonstrate she lacked constructive notice of the conditions or that the conditions were not a proximate cause of the fall:

A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition … . “In a premises liability case, a defendant [real] property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” … . A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it … .

Here, the defendant failed to establish, prima facie, that she lacked constructive notice of the alleged dangerous conditions—to wit, the twig on the sidewalk and inadequate lighting on the premises, or that these conditions were not a proximate cause of the plaintiff’s fall … . Since the defendant failed to meet her initial burden as the movant, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers … . Wittman v Nespola, 2021 NY Slip Op 00454, Second Dept 1-27-21

 

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DEFENDANTS DID NOT SEEK LEAVE OF COURT TO FILE A LATE MOTION FOR SUMMARY JUDGMENT AND OFFERED AN EXPLANATION FOR THE FIRST TIME IN REPLY PAPERS; THE EXPLANATION SHOULD NOT HAVE BEEN CONSIDERED AND THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s late motion for summary judgment should not have been granted. Defendants did not seek permission to make the late motion and only offered an explanation for the delay in reply papers, which should not have been considered:

Pursuant to CPLR 3212(a), unless the trial court directs otherwise, a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” … . Here, the defendants moved for summary judgment dismissing the complaint more than 120 days after the filing of the note of issue without seeking leave of court or offering an explanation showing good cause for their delay. As a result, the Supreme Court improvidently exercised its discretion in considering the defendants’ good cause argument, presented for the first time in reply papers, and in granting their motion … . Rivera v Zouzias, 2021 NY Slip Op 00443, Second Dept 1-27-21

 

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THE NYC ADMINSTRATIVE CODE REQUIRES ABUTTING PROPERTY OWNERS TO REPAIR SIDEWALK FLAGS OVER 1/2 INCH; PLAINTIFF PRESENTED EVIDENCE THE FLAG WAS THREE INCHES; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was evidence the sidewalk flag was three inches high and the NYC Administrative Code requires the abutting property owner to repair any flags over 1/2 inch:

The Administrative Code of the City of New York requires owners of real property abutting any sidewalk to maintain that sidewalk in a reasonably safe condition, which includes repaving, repairing and replacing defective sidewalk flags (Administrative Code § 7-210[3]). Furthermore, property owners are specifically required to, at their own cost and expense, repave or repair any portion of the sidewalk that constitutes a tripping hazard where “the vertical grade differential between adjacent sidewalk flags is greater than or equal to one half inch” ,,, ,

Plaintiff testified at the 50-h hearing that he tripped on a raised sidewalk flag that was approximately three inches higher than the adjacent flag, There is also photographic evidence that shows a visibly raised sidewalk flag in the area he identified as where his accident occurred. Tropper v Henry St. Settlement, 2021 NY Slip Op 00397, First Dept 1-26-21

 

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THE BANK DID NOT DEMONSTRATE STRICT COMPLIANCE WITH RPAPL 1304 IN THIS FORECLOSURE ACTION; SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff bank’s motion for summary judgment should not have been granted and, upon a search of the record, summary judgment should have been granted to defendant in this foreclosure action. The proof of mailing of the notice required by RPAPL 1304 was not sufficient:

Plaintiff failed to establish prima facie its strict compliance with RPAPL 1304 … . The copy of the certified mail receipt it submitted is undated and blank in other parts, and shows the signature of someone other than defendant. The copy of the pre-paid first-class mail envelope has no recipient’s name or address on it. Further, the affidavits plaintiff submitted do not demonstrate the loan servicer’s employees’ familiarity with the mailing practices and procedures of the servicer that had mailed the 90-day notices and the notice of default. U.S. Bank, N.A. v Calhoun, 2021 NY Slip Op 00398, First Dept 1-26-21

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING OF NEGLECT ON MOTHER’S PART (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support a finding of neglect on the part of mother (respondent). Although mother’s husband (Bradley CC.) had been violent on two occasions, the children did not witness the incidents:

Respondent’s handling of the domestic abuse and Bradley CC.’s alcohol and substance misuse gave petitioner reasonable cause for concern. Indeed, the evidence established that respondent — a recovering heroin addict — was aware that Bradley CC. had a substance and alcohol abuse problem but failed to acknowledge — or minimized — the impact that such problem was having or could have on her and the children. Respondent admitted to coping with the circumstances by habitually using marihuana, but was resistant to treatment and mental health counseling and failed to recognize the problematic nature of her chosen coping mechanism, particularly given her history of addiction. Despite the concern that respondent was not dealing with the circumstances in a healthy manner, there was no evidence that she used marihuana in the presence of the children or that her usage had ever rendered her unable to care for the children … . While engaged with preventative services with petitioner, respondent seemingly understood the potential impact that Bradley CC.’s drinking could have on the children and agreed to a safety plan stating that he was not to be left alone to care for the children. … * * *

Respondent’s failings … do not rise to such a level to support the conclusion that her actions and inactions actually impaired the children’s physical, mental or emotional conditions or placed the children at imminent risk of such impairment … . Matter of Lexie CC. (Liane CC.), 2021 NY Slip Op 00342, Third Dept 1-21-21

 

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PLAINTIFF’S INCONSISTENT DEPOSITION TESTIMONY IN THIS STAIRWAY SLIP AND FALL CASE RAISED A CREDIBILITY QUESTION BUT DID NOT REQUIRE SUMMARY JUDGMENT IN DEFENDANT’S FAVOR; PLAINTIFF’S TESTIMONY SHE DID NOT USE THE HANDRAILS REQUIRED DISMISSAL OF THE CLAIM ALLEGING THE HANDRAILS WERE DEFECTIVE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this stairway slip and fall case, determined the plaintiff’s inconsistent deposition testimony raised an issue of credibility but did not warrant summary judgment dismissing the action. However the claim relating to the handrails of the should have been dismissed because plaintiff testified she did not use the handrails:

While plaintiff’s initial deposition testimony was later contradicted by the affidavit she submitted in opposition to defendant’s motion, after a break in the deposition, she testified that she had misspoken, and changed her testimony significantly as to how her fall on defendant’s staircase occurred. Plaintiff’s latter version of the accident is, in the main, consistent with her affidavit. Thus, while the change of testimony mid-deposition presents an issue of credibility for the jury, the affidavit does not present the kind of feigned issue of fact that requires the court to disregard the affidavit … . Since plaintiff’s expert relied upon the version of the accident described in plaintiff’s affidavit, his affidavit was properly considered … . Plaintiff’s inability to identify uneven riser heights as the cause of her fall is not fatal to her claim, as her post-break deposition testimony permits the inference that her fall was caused by uneven riser heights … .

However, plaintiff’s affidavit presents a feigned issue of fact as to whether her fall was caused by any defect of the staircase handrails and must be disregarded with respect thereto … . Plaintiff testified consistently through the entirety of her deposition that she was not holding the handrail, that it was her custom and practice not to use handrails on short flights of steps, and that at no time during her fall did she attempt, or even think of attempting, to put her hand on the handrail. Dixon v Sum Realty, Co., 2021 NY Slip Op 00367, First Dept 1-21-21

 

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THE THREAT MADE BY DEFENDANT WAS PERSONAL IN NATURE AND WAS NOT DIRECTED AT THE CIVILIAN POPULATION WITHIN THE MEANING OF THE TERRORISM STATUTE (PENAL LAW 490.20); THE CONVICTION WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND WAS AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT). ​

The First Department, reversing defendant’s “terrorism” conviction, determined the evidence was legally insufficient and the conviction was against the weight of the evidence. The defendant threatened to shoot “you guys,” but the threat was personal in nature and was not directed at a “civilian population:”

The evidence of defendant’s “intent to intimidate or coerce a civilian population” (Penal Law § 490.20[1]) was legally insufficient to support the conviction … . We also find that the verdict was against the weight of the evidence in that respect … .

At the end of an altercation, defendant, a Muslim, threatened to shoot “you guys,” referring to several Bangladeshi worshippers at defendant’s mosque. Although there was evidence presented at trial that defendant bore animus toward Bangladeshi people, the threat mentioned no group or population and instead appears to have been based on a personal dispute defendant had with one or more of his fellow worshippers over money or a missing phone. Accordingly, this threat was not directed at a “civilian population” as that term was explained by the Court of Appeals in People v Morales (20 NY3d 240, 247 [2012]). To find that defendant’s act amounted to a terroristic threat would trivialize the definition of terrorism by applying it “loosely in situations that do not match our collective understanding of what constitutes a terrorist act” … . People v DeBlasio, 2021 NY Slip Op 00376, First Dept 1-21-21

 

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RARE CASE WHERE EVIDENCE OF A ROUTINE PROCEDURE FOR KEEPING A PARKING LOT FREE OF ICE AND SNOW, COMBINED WITH PLAINTIFF’S TESTIMONY, SUPPORTED SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department held that evidence of a routine procedure for keeping the parking lot free of ice and snow, together with the plaintiff’s testimony she did not see any ice on the parking lot when she arrived at work on the day of the fall, supported summary judgment in defendants’ favor in this slip and fall case:

The plaintiff testified that she worked at the premises five days a week, typically from 9:00 a.m. to 5:00 p.m., and that she either came to the premises by car pool or driving herself. The plaintiff indicated that she had not seen any runoff of melting snow or ice from snow piles in the parking lot to the area where she allegedly fell prior to or on the date of the accident. The plaintiff further testified that during the morning of January 20, 2011, she parked her car at the premises and did not notice any ice on the parking lot surface at that time. The plaintiff indicated that when she left work shortly after 6:00 p.m., she “look[ed] down at the ground” while walking to her car, and she did not see the ice on which she slipped, which she described as being clear, until after she fell. Further, Mauricio Pacheco, a maintenance worker for [defendant] RXR, testified that he checked the parking lot every morning, and if any ice was present, he would have salted the area. Pacheco indicated that if the temperature dropped below freezing or there was any precipitation later in the day, he would have again checked the parking lot for ice. Pacheco also testified that lighting for the parking lot turned on automatically at 6:00 p.m., and that he checked to make sure the lighting was working every morning. Zimmer v County of Suffolk, 2021 NY Slip Op 00331, Second Dept 1-20-21

 

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PROOF OF A REGULAR SNOW REMOVAL ROUTINE IS NOT ENOUGH TO DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION OF THE SIDEWALK AT THE TIME OF THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant lessee (E & Z) failed to demonstrate it did not have actual or constructive notice of the alleged ice and snow on the sidewalk in this slip and fall action. Once again, it was not enough to offer proof of routine snow removal procedures as opposed to specific evidence inspection or cleaning close in time to the fall:

… [T]here was no statute or ordinance which imposed tort liability on E & Z for the failure to maintain the sidewalk abutting the subject property. However, E & Z’s principal, Hikmatullah Rasul, testified at his deposition that E & Z was required to remove snow and ice from the sidewalk outside the subject property to the curb on both the Jamaica Avenue side and the 104th Street side. Rasul explained that when it snowed either he, his brother, or a restaurant employee would shovel snow, break up any ice, and apply salt. E & Z did not clean at the bottom of the train staircase as that was not its property.

In support of its motion for summary judgment, E & Z failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against it by demonstrating that it was free from negligence … . Specifically, E & Z failed to eliminate triable issues of fact as to whether it undertook snow and ice removal efforts to clear the sidewalk on the night of the plaintiff’s fall, or whether any snow and ice removal efforts undertaken by it created or exacerbated the icy condition which allegedly caused the plaintiff’s fall … . Since E & Z failed to establish its prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied E & Z’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Zamora v David Caccavo, LLC, 2021 NY Slip Op 00329, Second Dept 1-20-21

 

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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED AND SHOULD NOT HAVE BEEN CONFIRMED; ALTHOUGH DEFENDANTS DEFAULTED, THE REFEREE’S REPORT FUNCTIONS AS AN INQUEST ON DAMAGES WHICH THE DEFENDANTS CAN CONTEST (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because it was based upon business records that were not produced. The court noted that the fact that defendants had defaulted did not preclude them from contesting the amount owed:

… [T]he referee’s report should not have been confirmed because it was based upon unproduced business records … . The fact that the defendants defaulted in appearing did not mean that they were precluded from contesting the amount owed … . The referee’s report served the function of an inquest on damages, which must be based upon admissible evidence … . Wilmington Sav. Fund Socy., FSB v Moriarty-Gentile, 2021 NY Slip Op 00328, Second Dept 1-20-21

 

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