You are here: / Negligence
, , ,

PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city could not be held liable for a “trespass activity” motorcycle accident in the parking lot at Yankee Stadium. Trespassers have used the parking for motorcycles, dirt bikes and all-terrain vehicles for recreation for years. Plaintiff’s decedent was killed in a collision in the parking lot. Under the General Obligations Law the city could not be liable unless its conduct was willful or malicious:

The decedent, who trespassed onto a Yankee Stadium parking lot in the off season together with other trespassers who similarly rode motorcycles, dirt bikes and all-terrain vehicles, suffered fatal injuries in a collision with an all-terrain vehicle operated by defendant Pena. The record shows that the nature of the trespass activity involved was commonplace for the parking lot in question, for at least two years, and that drag racing would sometimes be involved. Plaintiff alleged that the City (as lot owner) and Kinney (as lessee) were negligent for not repairing and/or securing the lot’s perimeter fence, and in not employing proper security or supervision to keep trespassers off the premises.

Here, the subject property was physically conducive to the motorcycle activity taking place thereon, and was appropriate for public use in pursuing the activity as recreation (see General Obligations Law § 9-103). As such, the City is immune from liability for any ordinary negligence on its part that may have given rise to the cause of the decedent’s accident, and plaintiff has not otherwise demonstrated that the City’s challenged conduct was willful or malicious as might preclude the City’s reliance on the defense afforded under General Obligations Law § 9-103 … .

Furthermore, although Kinney has not relied upon General Obligation Law § 9-103 as a potential defense to the action against it, the statute’s defense is available to lessees as well as property owners … . Inasmuch as the issue appears on the face of the record, involves no new facts and could not have been avoided if it were timely raised … . Rodriguez v City of New York, 2018 NY Slip Op 03821, First Dept 5-29-18

​NEGLIGENCE (MUNICIPAL LAW, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/MUNICIPAL LAW (NEGLIGENCE, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/TRESPASS ACTIVITY (MUNICIPAL LAW, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/GENERAL OBLIGATIONS LAW (MUNICIPAL LAW, IMMUNITY, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))

QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined an issue of fact whether the defendant property owner had constructive notice of inconsistently worn and slippery steps precluded the award of summary judgment to the defendant. The First Department also found that the cause of the fall was sufficiently identified by plaintiff’s expert opinion, despite the difficulty in discerning the defect from the photographs:

Plaintiff identified the cause of his fall on stairs in a building owned and managed by defendants sufficiently to withstand summary judgment. He was not required to identify at the time of the accident “exactly where [he] fell and the precise condition that caused [him] to fall” … . He identified the location of his fall at his deposition. Plaintiff also explained that it was the “concave” shape of the steps that caused him to slip. This testimony was corroborated by plaintiff’s expert, who opined that the stairs were dangerously slippery and were disproportionately worn in the middle, creating an unsafe “inward sloping condition” … . Plaintiff’s expert’s opinion was properly considered, although it was not timely disclosed, since there was no showing of prejudice to defendants … .

Plaintiff’s evidence of the cause of his fall is also sufficient to raise issues of fact as to the existence of a defective condition. While it is difficult to discern a concave or sloping condition in the photographs in the record, the photographs are not sufficiently clear to be conclusive.

The record also presents issues of fact as to defendants’ notice of the alleged defects. Inconsistently worn and slippery steps are not latent defects and do not appear overnight. In addition, defendants submitted evidence showing that they had an opportunity to observe the defects. The building superintendent informally inspected the stairs at least three times a week during cleaning. Thus, if the defects are found to exist, it will be reasonable to infer that defendants had constructive notice of them … . Johnson v 675 Coster St. Hous. Dev. Fund, 2018 NY Slip Op 03756, First Dept 5-24-18

​NEGLIGENCE (SLIP AND FALL, QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT))/ CONSTRUCTIVE NOTICE (SLIP AND FALL, QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT))/STAIRWAY (SLIP AND FALL, QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT))

CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department determined conflicting evidence about the presence of liquid on a stairway precluded summary judgment in this slip and fall case:

Plaintiff testified that on the day of the accident (Thanksgiving) she took the stairs down from the third floor and they were dry. This was sometime between 11:30am and noon that day. When she returned some twenty minutes later, sometime between 11:50 a.m. and 12:20 p.m., plaintiff walked up the same flight of stairs. On her way up, she noticed there was some liquid or water on the steps and she sidestepped the puddle. Later that day, at 3 p.m., plaintiff took the same flight of stairs a third time, this time with her son. Plaintiff testified that as she walked down the stairs at 3 p.m. she slipped and fell. Her testimony is that she slipped on water or some liquid substance that had no smell and that it was in the same location on the stairs where she had previously observed a puddle earlier that afternoon.

Defendant denies that it had actual notice of the condition alleged. Defendant’s building caretaker testified that she inspected the staircase twice that day, following an established schedule. Her first inspection was at approximately 8:20 a.m. and her second inspection was at 12:30 p.m.. The caretaker denied having seen any liquid or water on the steps either time and defendant also contends no one made any complaints about a wet condition on the stairs that day.

The conflicting testimony as to whether or not there was water on the steps at the time the caretaker’s second inspection implicates issues of credibility. If, as plaintiff claims, there was water on the steps at or shortly before 12:30 p.m., when the caretaker did her second inspection, then defendant knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation … . The evidence submitted by defendant was not sufficient to demonstrate, prima facie, that defendant did not have actual notice of the allegedly hazardous condition prior to plaintiff’s fall … . Capers v New York City Hous. Auth., 2018 NY Slip Op 03749, First Dept 5-24-18

​NEGLIGENCE (SLIP AND FALL, CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/CONSTRUCTIVE NOTICE (SLIP AND FALL, CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/ACTUAL NOTICE  (SLIP AND FALL, CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/STAIRWAY (SLIP AND FALL, CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))

BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT).

The First Department determined defendant property owner’s motion for summary judgment in this stairway slip and fall case was properly denied. Plaintiff alleged she tripped and fell on a crack in the stairway. A 2012 building inspection report stated that the stairway needed repair. And the defendant submitted only the building’s general cleaning routine:

The record shows that defendant failed to demonstrate that it lacked actual notice of the stairway defect, since an April 2012 building inspection report states that the property’s ramps, steps and railing required repair. Defendant also failed to demonstrate that it did not have constructive notice of the alleged defect, because it submitted evidence only as to the building’s general cleaning routine, and failed to show when the stairway had last been inspected prior to the accident … .

In light of defendant’s failure to meet its initial burden to establish that it lacked actual or constructive notice of the defective condition of the stairway, the burden never shifted to plaintiff to establish how long the condition was in existence … . Javier v New York City Hous. Auth., 2018 NY Slip Op 03736, First Dept 5-24-18

​NEGLIGENCE (BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT))/SLIP AND FALL (BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT))/CONSTRUCTIVE NOTICE (SLIP AND FALL, (BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT))/ACTUAL NOTICE (BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT))/STAIRWAY (SLIP AND FALL, BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT))

,

ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the defendant driver (Gould) who collided with another defendant driver (Pappas) who had failed to yield the right-of-way was not entitled to summary judgment, noting that there can be more than one proximate cause of an accident:

There can be more than one proximate cause of an accident'” … , and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” … .

While the driver with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield … , the driver with the right-of-way also has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles … .

The Gould defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cross claims asserted against them. While they submitted evidence that the Pappas vehicle failed to yield the right-of-way to their vehicle, in violation of Vehicle and Traffic Law § 1142(a), the submissions in support of their motion failed to establish the Gould defendants’ freedom from fault and that the Pappas vehicle’s failure to yield the right-of-way was the sole proximate cause of the accident … . Based on their submissions, which included the deposition transcripts of the respective parties, the Gould defendants failed to eliminate all triable issues of fact as to whether Gould took reasonable care to avoid the collision … . Miron v Pappas, 2018 NY Slip Op 03672, Second Dept 5-23-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/VEHICLE AND TRAFFIC LAW TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/PROXIMATE CAUSE (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

,

PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS A QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT).

The Second Department, modifying Supreme Court, determined (1) the plaintiff’s expert did not raise a question of fact about the quality of care provided by two of the defendants because he did not specialize in emergency medicine and didn’t indicate he had familiarized himself with the standard of care in that specialty, and (2) there was a question of fact whether the emergency exception applied to the general rule that a hospital is not vicariously liable for the treatment provided by private attending physicians:

” … [W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . Here, the plaintiffs’ expert, who was board-certified in internal medicine and infectious disease, did not indicate in his affirmation that he had training in emergency medicine, or what, if anything, he did to familiarize himself with the standard of care for this specialty. …

“As a general rule, a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee” … . However, “an exception to the general rule exists where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … . Here, the hospital established its prima facie entitlement to judgment as a matter of law by its submission of the deposition testimony of the doctors and physician’s assistant involved in the plaintiff’s care, which indicated that they were not employees of the hospital … .

In opposition, however, the plaintiffs raised a triable issue of fact as to whether the hospital could be held vicariously liable for the medical malpractice of the individuals involved in the plaintiff’s care as independent contractors, based upon the emergency room exception … . Galluccio v Grossman, 2018 NY Slip Op 03664, Second Dept 5-23-18

​NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE,  PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/EMERGENCY EXCEPTION (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/HOSPITAL (MEDICAL MALPRACTICE, EMERGENCY EXCEPTION, PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))

PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined defendant property owner’s motion for summary judgment in this stairway slip and fall case was properly denied. There was a conflict between the plaintiff’s description of the defect and the area where she fell (included in the deposition testimony submitted by the defendant) and the defendant’s evidence of the location of the defect:

In moving for summary judgment, the defendant was obligated to come forward with evidence establishing its prima facie entitlement to judgment as a matter of law by eliminating all material issues of fact as to its potential liability… . However, in view of the conflicting accounts submitted by the defendant as to the location of the defect which allegedly caused the plaintiff’s fall, the defendant failed to sustain its prima facie burden on the motion. Accordingly, denial of the motion was required, without regard to the adequacy of the plaintiff’s submissions in opposition … . Tavarez v Pistilli Assoc. III, LLC, 2018 NY Slip Op 03727, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, STAIRWAYS, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))/SLIP AND FALL (STAIRWAYS, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))

SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the defect in the stairway, which was small and was not located in the walking surface of the stairway, was trivial and not actionable:

… [T]he defendant’s expert reviewed the transcript of the plaintiff’s examination pursuant to General Municipal Law § 50-h, together with color photographs identified and marked by the plaintiff during that examination, which depicted the exact location of the alleged defect. The expert also conducted an inspection of the accident location. Based on his review and inspection, the expert averred that the alleged defect was located three inches from the left stairway wall, directly underneath the handrail. Moreover, the height differential between the nosing and the stair measured one-half inch at its greatest depth. Considering the location of the alleged defect, which was not on a walking surface of the stairway … , together with all other relevant surrounding circumstances, the defendant established, prima facie, that the alleged defect was trivial … . Stanley v New York City Hous. Auth., 2018 NY Slip Op 03726, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/SLIP AND FALL (STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/TRIVIAL DEFECTS (SLIP AND FALL, STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))

PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff assumed the risk of injury in a slam dunk competition at basketball camp:

Under the doctrine of primary assumption of risk, “[i]f the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be” … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … . Osmond v Hofstra Univ., 2018 NY Slip Op 03693, Second Dept 5-23-18

​NEGLIGENCE (ASSUMPTION OF THE RISK, PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))/ASSUMPTION OF THE RISK (PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))/BASKETBALL (NEGLIGENCE, ASSUMPTION OF THE RISK, PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))

MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).

The Second Department determined a merchandise rack in the aisle of defendant store was open and obvious and not inherently dangerous:

[Plaintiff] commenced this action … to recover damages for personal injuries she allegedly sustained when she fell at the defendants’ department store in Yonkers, while attempting to walk past a merchandise rack situated in one of the aisles. …

“A landowner has a duty to maintain his or her premises in a reasonably safe manner”… . “However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including the decedent’s deposition testimony, demonstrating that the merchandise rack in the aisle was both open and obvious and that it was not inherently dangerous … . Nannariello v Kohl’s Dept. Stores, Inc., 2018 NY Slip Op 03689, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))/SLIP AND FALL (MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL,  MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND 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