You are here: / Negligence
, ,

SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT).

The Second Department determined the defendants demonstrated the storm in progress rule insulated them from liability in this snow and ice sidewalk slip and fall case because the slip and fall occurred less than four hours after the precipitation stopped. The motion to renew was properly denied because the newly submitted evidence did not call into question the applicability of the four-hour rule:

… [T]he defendants demonstrated that, pursuant to Administrative Code of the City of New York § 16-123(a), which requires building owners to clear ice and snow from an abutting sidewalk within four hours after the snow ceases to fall, excluding the hours between 9:00 p.m. and 7:00 a.m., they had no duty to clear the sidewalk until 10:20 a.m., which was several hours after the plaintiff’s accident. The plaintiff moved, in effect, for leave to renew and reargue her opposition to the defendants’ motion for summary judgment. In support of that branch of her motion which was for leave to renew, the plaintiff submitted the deposition testimony of a former employee of the defendants who witnessed the accident. The plaintiff argued that she was unable to present this evidence in opposition to the motion for summary judgment because the defendants deliberately delayed disclosing the identity of the witness until just before they made that motion. …

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]) and “shall contain reasonable justification for the failure to present such facts on the prior motion”… . Here, we agree with the Supreme Court’s determination to deny that branch of the plaintiff’s motion which was for leave to renew her opposition to the defendants’ motion for summary judgment. The newly submitted evidence would not have changed the prior determination … . The new facts relied on, consisting of the deposition testimony of the defendants’ former employee, did not raise a triable issue of fact as to whether the defendants had a duty to clear the sidewalk prior to the plaintiff’s accident or whether they created or exacerbated a dangerous condition by engaging in negligent snow removal efforts. Ghoneim v Vision Enters. Mgt., LLC, 2018 NY Slip Op 06884. Second Dept 10-17-18

NEGLIGENCE (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/SLIP AND FALL (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/STORM IN PROGRESS RULE  (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/CIVIL PROCEDURE (MOTION TO RENEW, SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/RENEW, MOTION TO (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/CPLR 2221 (MOTION TO RENEW, SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))

, ,

MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT).

The Second Department determined the motion to serve an amended notice of claim as a late notice of claim in this pedestrian accident case was properly denied. The original notice of claim alleged inadequate street lighting prevented the defendant driver from seeing the infant plaintiff. The amended notice of claim purported to add theories of liability and purported to add mother’s derivative claim. Mother’s claim could not be added because the infancy toll of the statute of limitations did not apply to her:

… [T]he plaintiffs failed to proffer a reasonable excuse for the delay in serving a notice of claim that described the infant plaintiff’s injuries as arising from any negligence on the part of the Town other than that related to the nonfunctioning street lights, as described in the original notice of claim … . The plaintiffs also failed to demonstrate a causal nexus between the infancy of one of the plaintiffs and the delay … . Moreover, the plaintiffs did not demonstrate that, within 90 days after the accident or a reasonable time thereafter, the Town acquired actual knowledge of the essential facts constituting the claim that it was negligent with respect to anything other than the street lights… . The plaintiffs also failed to establish that the Town would not be substantially prejudiced by the delay … .

The proposed amended notice of claim with respect to the mother’s derivative claim is time-barred because the statute of limitations expired before the plaintiffs moved to serve a late notice of claim, and the toll for infancy pursuant to CPLR 208 does not apply to a parent’s derivative cause of action … .

We also agree with the Supreme Court’s determination denying that branch of the plaintiffs’ motion which was for leave to serve an amended notice of claim. A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability … . The proposed amendments to the notice of claim added new theories of liability related to the Town’s ownership, operation, control, design, planning, study, retention, supervision, maintenance, repair, inspection, and management of the street and sidewalks on Swalm Street. Such amendments are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Palacios v Town of N. Hempstead, 2018 NY Slip Op 06927, Second Dept 10-17-18

NEGLIGENCE (MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/NOTICE OF CLAIM  (MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/CIVIL PROCEDURE (NEGLIGENCE, MUNICIPAL LAW, STATUTE OF LIMITATIONS, MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/CPLR 208 (NEGLIGENCE, MUNICIPAL LAW, STATUTE OF LIMITATIONS, MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))

,

DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants demonstrated it did not have notice of a defective seat in a movie theater and the res ipsa loquitur doctrine did not apply because the seat could have been caused by someone other than the defendants:

The defendants demonstrated, prima facie, that they neither created nor had actual or constructive notice of the defective condition of the subject seat … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants created or had notice of the particular condition … .

The doctrine of res ipsa loquitur was not applicable because the evidence presented did not adequately exclude the chance that the seat had been damaged by someone other than the defendants … . Newisky v United Artists Kaufman Astoria 14 Regal Cinemas, 2018 NY Slip Op 06880, Second Dept 10-17-18

NEGLIGENCE (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT))/EVIDENCE (NEGLIGENCE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT))/RES IPSA LOQUITUR  (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT))

, ,

QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the continuous treatment doctrine tolled the statute of limitations in this dental malpractice case. The doctrine may apply to one of the dentists (Gold) who retired by imputing to him the continued treatment by other dentists:

“Treatment” does not necessarily terminate upon the last visit, if further care or monitoring of the condition is explicitly anticipated by both physician and patient, as manifested by a regularly scheduled appointment for the near future … . Thus, “[i]ncluded within the scope of continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment'” … . Even the monitoring of an abnormal condition may be sufficient to support the application of the continuous treatment toll … . The critical inquiry is not whether the defendant failed to make a diagnosis or undertake a course of treatment during the period of limitation, but whether the plaintiff continued to seek treatment for the same or related conditions giving rise to his or her claim of malpractice, during that period… . Accordingly, a defendant cannot defeat the application of the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, if the defendant treated the plaintiff continuously over the relevant time period for symptoms that are ultimately traced to that condition … .

Here, the plaintiff does not claim merely that the moving defendant failed to diagnose her condition and treat her for it … . Rather, she alleged that between 2009 and 2015, she was treated continuously for symptoms ultimately traced to abnormal and severe periodontal disease. Both the plaintiff’s affidavit and her expert’s affidavit, which referred to numerous specific notations in the plaintiff’s dental records, raised triable issues of fact as to whether a course of treatment for periodontal disease was established and therefore the continuous treatment doctrine would apply to toll the statute of limitations … . Cohen v Gold, 2018 NY Slip Op 06878, Second Dept 10-17-18

NEGLIGENCE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/DENTAL MALPRACTICE (QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/CIVIL PROCEDURE (CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/CONTINUOUS TREATMENT DOCTRINE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/STATUTE OF LIMITATIONS (DENTAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))

,

PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT’S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff could not identify the cause of her fall from a fire escape and defendant's motion for summary judgment should have been granted. The cause of the fall alleged in the opposition papers was deemed a feigned issue of fact:

The defendant established its prima facie entitlement to judgment as a matter of law through the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify the cause of her fall … . In opposition, the plaintiff failed to raise a triable issue of fact … . The plaintiff's affidavit, in which she identified the cause of her fall as a “rusted metal shard” from the fire escape ladder, which pierced her hand, presented what appears to be a feigned issue of fact, designed to avoid the consequences of her earlier deposition testimony that her hand was “thrown off” the ladder, but she did not know why … . Under these circumstances, it would be speculative to conclude that any of the alleged statutory and building code violations or dangerous conditions set forth in her expert's affidavit, even if fully credited, proximately caused her accident … . Burns v Linden St. Realty, LLC, 2018 NY Slip Op 06876, Second Dept 10-17-18

NEGLIGENCE (PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT'S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, (PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT'S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LADDERS (FIRE ESCAPE, NEGLIGENCE, LAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT'S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

QUESTION OF FACT WHETHER LEG OF A CLOTHING RACK IN A STORE WAS OPEN AND OBVIOUS, STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT).

In this slip and fall case, the First Department determined there was a question of fact whether the leg of a closing rack in a store was an open and obvious danger:

There is no duty to warn of an open and obvious danger that can be seen by an “observer reasonably using his or her senses” … . “Because of the factual nature of the inquiry, whether a danger is open and obvious is most often a jury question” … . Here, defendant failed to show that the leg of the clothing rack that caused the accident was open and obvious and not inherently dangerous as a matter of law. Plaintiff testified that she could only see two racks ahead of her as she pushed her way through clothes when she tripped on the leg from one of the racks and that she did not see it before she fell … . The photographs in the record are insufficient to establish defendant's burden to show that the leg of the clothing rack was an open obvious risk that was readily observable or that the premises was kept in a reasonably safe condition, because the deposition testimony establishes that none of them accurately depict the accident location as it appeared when plaintiff fell … .

Defendant further failed to meet its burden to establish that its employees did not cause or create the condition by placing the store's clothing racks too close together with enough merchandise on them to make it difficult for customers such as plaintiff to be able see the clothing rack's leg sticking out into the aisle. Its sales associate testified that it was defendant's employees who placed the racks at the accident location before plaintiff fell. Stadler v Lord & Taylor LLC, 2018 NY Slip Op 06861, First Dept 10-16-18

NEGLIGENCE (QUESTION OF FACT WHETHER LEG OF A CLOTHING RACK IN A STORE WAS OPEN AND OBVIOUS, STORE'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER LEG OF A CLOTHING RACK IN A STORE WAS OPEN AND OBVIOUS, STORE'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, QUESTION OF FACT WHETHER LEG OF A CLOTHING RACK IN A STORE WAS OPEN AND OBVIOUS, STORE'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT))

,

FIREFIGHTER’S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined that the firefighter's rule did not preclude a suit by a police officer (Stockbower) who allegedly was injured stepping out of his van into a depressed area around a sewer grate. The court further determined defendant city did not demonstrate it did not have constructive notice of the depressed area:

The negligence cause of action is not barred by the firefighters' rule, because the risk of injury was not increased by Slockbower's performance of his official duties … . Slockbower had parked the van in order to direct traffic, but was not actually doing so when he fell … . Although Slockbower admitted that he did not see the depressed sewer grate because he was “[l]ooking to see if there were any cars going by,” and not at the ground, it is clear from the context of this statement that he was not looking at the cars for the purpose of directing traffic, but in order to exit the van safely.

Defendants established prima facie that they neither caused nor had actual notice of the depressed sewer grate. However, they failed to establish as a matter of law that they had no constructive notice of it … . They submitted no evidence of any prior inspections … . Moreover, they submitted photographs of the grate taken within weeks after the accident that Slockbower testified fairly and accurately depicted the site as it appeared on the day of the accident … . Because the nature of the defect, as depicted in the photographs, is not latent, and the defect would not have developed overnight, constructive notice may be inferred from its existence … . Genova v City of New York, 2018 NY Slip Op 06813, First Dept 10-11-18

NEGLIGENCE (MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/MUNICIPAL LAW (NEGLIGENCE, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/FIREFIGHTER'S RULE (NEGLIGENCE, MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/POLICE OFFICERS (NEGLIGENCE, MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))

PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT).

The First Department determined that defendants demonstrated they did not have notice of liquid on the stairs in this slip and fall case. But they did not meet their burden with respect to whether the handrail was loose:

Plaintiff alleges that she slipped and fell on a slippery liquid on the interior stairs of an apartment building … . Plaintiff testified that when she began to slip, she reached for the stairs' handrail, but it was loose, and she fell.

Defendants met their prima facie burden of showing that they neither created, nor had actual or constructive notice of, the alleged liquid on the stairway … . However, they failed to meet their burden with respect to plaintiff's alternative theory of liability, the allegedly defective handrail, given the superintendent's deposition testimony that he had previously repaired the handrail in the area where plaintiff fell by securing it with a clamp, but that one of the four screws needed to install the clamp was broken … . DeSuero v 1386 Assoc., LLC, 2018 NY Slip Op 06810, First Dept 10-11-18

NEGLIGENCE (SLIP AND FALL, PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))/SLIP AND FALL (PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))/HANDRAILS (SLIP AND FALL, PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))/STAIRS (SLIP AND FALL, PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))

QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the ski resort defendants were not entitled to summary judgment in this skiing accident case. Infant plaintiff allegedly ran into a metal snow machine pole that was not padded:

The motion court dismissed the complaint on the ground that plaintiff assumed the risks associated with the sport of skiing.

Such risks include the risk of injury resulting from “other persons using the facilities” and from “man-made objects that are incidental to the provision or maintenance of a ski facility,” such as snowmaking equipment (General Obligations Law § 18-101; see also id. § 18-106). However, an individual “will not be deemed to have assumed … unreasonably increased risks”… .

If, as plaintiffs maintain, the unpadded pole was located on the ski trail or in an area where skiing was permitted, then defendants could be found to have failed to maintain their property in a reasonably safe condition. General Obligations Law § 18-107 provides that, “[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law” … . The common law applies where, as here, plaintiffs are alleging inadequate padding of defendant's snowmaking pole, a condition not specifically addressed by the statute (id.). On the record before us, we cannot conclude, as a matter of law, that the pole was off-trail and that the pole did not need to be padded. Thus, defendants are not entitled to summary judgment.

Nor are defendants entitled to summary judgment on the ground that the failure to pad the pole did not cause the subject collision, because that failure may have caused or enhanced the infant's injuries … . Madsen v Catamount Ski Resort, 2018 NY Slip Op 06794, First Dept 10-11-18

NEGLIGENCE (QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT))/ASSUMPTION OF RISK (SKIING, QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT))/SKIING (QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT))

,

ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF’S DECEDENT’S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT).

The First Department determined that defendant's motion for summary judgment in this walkway slip and fall case was properly denied. Although there was evidence suggesting the storm-in-progress doctrine applied, defendants did not demonstrate the condition of the walkway before the storm. The court noted the plaintiff's decedent's testimony was contradictory and strained credulity:

Defendant established, through an expert report and meteorological records, that on January 5, 2014, a freezing rain storm occurred before the decedent's alleged accident and ended after or shortly before the accident, implicating the storm-in-progress doctrine … . However, defendant failed to establish the condition of the walkway on which the decedent fell before the storm began. The meteorological records show that a snow storm had occurred on January 2 and 3, causing between six and seven inches of snow to fall. They also show that the snow melted and re-froze on January 4. Thus, defendant failed to eliminate the issues of fact whether there was ice on the walkway before the freezing rain storm began and whether it had been there long enough for defendant to discover and remedy the situation… .

We agree with defendant that the decedent's own testimony appears to contradict itself on numerous occasions, and strains credulity on others. However, we do not find the testimony incredible as a matter of law, and leave it to the trier of fact to evaluate. Thomas v New York City Hous. Auth., 2018 NY Slip Op 06789, First Dept 10-11-18

NEGLIGENCE (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/SLIP AND FALL (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/STORM IN PROGRESS (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/EVIDENCE (SLIP AND FALL, ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy