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BY SUBMITTING PLAINTIFF’S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined plaintiff's deposition testimony raised a question of fact whether plaintiff slipped and fell because of water on the floor near a sink in defendant's nursing home. The testimony was submitted by the defendant in support of its summary judgment motion. The defendant argued there was no proof water was on the floor. However, by submitting plaintiff's deposition testimony, which presented circumstantial evidence of water on the floor, defendant was unable to make out a prima facie case:

In moving for summary judgment, the defendant argued, inter alia, that there was no evidence that water was on the floor. In support of its motion, the defendant submitted, inter alia, the plaintiff's deposition testimony, in which he testified that a nurse washes his roommate every morning, he has personally observed water spill on the floor when that happens, and he has complained about such condition at least 10 times in the past. The plaintiff further testified that he heard his roommate being cared for and someone walking back and forth from the sink to his roommate that morning, and that the roommate's shirt was wet after the accident. Such evidence, although circumstantial, permits a reasonable inference that the nurse washed the plaintiff's roommate that morning and spilled water on the floor, which proximately caused the plaintiff to fall… . Accordingly, the defendant failed to meet its prima facie burden on its motion for summary judgment, and the Supreme Court properly denied its motion without regard to the sufficiency of the plaintiffs' opposition papers … . Simion v Franklin Ctr. for Rehabilitation & Nursing, Inc., 2018 NY Slip Op 00184, Second Dept 1-10-18

NEGLIGENCE (SLIP AND FALL, SUMMARY JUDGMENT, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))/EVIDENCE  (SLIP AND FALL, SUMMARY JUDGMENT, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))/SLIP AND FALL (SUMMARY JUDGMENT, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))/SUMMARY JUDGMENT (NEGLIGENCE, SLIP AND FALL, EVIDENCE, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))

DEFENDANTS DEMONSTRATED THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE CARDBOARD ON THE SIDEWALK WHICH CAUSED PLAINTIFF TO SLIP AND FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant property owners demonstrated they did not have actual or constructive notice of the cardboard on the sidewalk which caused plaintiff to slip and fall:

…[T]he … defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence of their trash collection and disposal practices, deposition testimony regarding the routine cleaning of the sidewalk each morning, and deposition testimony from several witnesses who walked through the area shortly before the plaintiff's accident and did not observe the condition that allegedly caused his fall … . In opposition, the plaintiff presented speculative arguments that were insufficient to raise a triable issue of fact … . Mandarano v PND, LLC, 2018 NY Slip Op 00133, Second Dept 1-10-18

NEGLIGENCE (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE CARDBOARD ON THE SIDEWALK WHICH CAUSED PLAINTIFF TO SLIP AND FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))/SLIP AND FALL  (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE CARDBOARD ON THE SIDEWALK WHICH CAUSED PLAINTIFF TO SLIP AND FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))

DEFENDANTS IN THIS SLIP AND FALL CASE FAILED TO DEMONSTRATE WHEN THE STAIRS HAD LAST BEEN INSPECTED, THEREFORE DEFENDANTS DID NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE NOTICE AND SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT (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 was injured when he jumped from a step in wooden stairs as it cracked. Defendants papers did not indicate when the stairs had last been inspected. Therefore the papers did not demonstrate the absence of constructive notice:

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 allegedly dangerous or 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 … . To meet its prima facie burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell … .

Here, while the evidence submitted in support of the subject branch of the defendants' motion may have demonstrated, prima facie, that they did not create the alleged condition or have actual notice thereof, it failed to demonstrate, prima facie, that they did not have constructive notice of it. Indeed, the evidence submitted on their motion failed to demonstrate when the subject staircase was last inspected relative to the plaintiff's accident … . Hanney v White Plains Galleria, LP, 2018 NY Slip Op 00130, Second Dept 1-10-18

NEGLIGENCE (DEFENDANTS IN THIS SLIP AND FALL CASE FAILED TO DEMONSTRATE WHEN THE STAIRS HAD LAST BEEN INSPECTED, THEREFORE DEFENDANTS DID NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE NOTICE AND SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT (SECOND DEPT))/SLIP AND FALL (DEFENDANTS IN THIS SLIP AND FALL CASE FAILED TO DEMONSTRATE WHEN THE STAIRS HAD LAST BEEN INSPECTED, THEREFORE DEFENDANTS DID NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE NOTICE AND SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT (SECOND DEPT))

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OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF’S DECEDENT, 42 USC 1983 CAUSE OF ACTION AGAINST MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined that the 42 USC 1983 cause of action against the municipality was properly dismissed. Plaintiff's decedent was killed when a handgun handled by an off-duty police officer (Pileggi) went off. The off-duty officer was convicted of manslaughter. The cause of action against the municipality was dismissed because there was no evidence the off-duty officer was acting under color of law and there was no policy which encouraged the reckless actions of the off-duty officer:

Where the conduct complained of was committed by an off-duty police officer, a constitutional violation may be found if, for instance, the officer, albeit off-duty, nonetheless is engaged in some activity arguably invoking the real or apparent power of the police department, or is engaged in the performance of duties prescribed generally for police officers… .. Here, the amended complaint alleged only, in the most conclusory fashion, that Pileggi was “acting under the color of law” when the shooting occurred. Since nothing in the amended complaint suggested that Pileggi identified himself or was recognizable as a police officer, or was otherwise engaged in any activity arguably invoking the real or apparent power of the police department, the seventh cause of action was fatally defective. In turn, because the plaintiffs failed sufficiently to allege that Pileggi was acting under color of state law, it follows that there was no factual basis upon which to hold the defendants liable under [Monell v New York City Dept. of Social Servs., 436 US 658] … .

In any event, even if the amended complaint had properly pleaded that Pileggi was acting under color of state law and not engaged in purely personal pursuits at the time of the shooting, the seventh cause of action was also fatally defective in that it failed to allege specific facts supporting the plaintiffs' contention that the defendants had a policy or custom of encouraging or sanctioning the type of reckless behavior that led to the shooting … . Everett v Eastchester Police Dept., 2018 NY Slip Op 00129, Second Dept 1-10-18

MUNICIPAL LAW (POLICE OFFICERS, WRONGFUL DEATH, OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, POLICE OFFICERS, NEGLIGENCE,  OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))/42 USC 1983 (MUNICIPAL LAW, POLICE OFFICERS, NEGLIGENCE, OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, POLICE OFFICERS, OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION AGAINST MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/POLICE OFFICERS (OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))

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COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action for legal malpractice. Whether an investigative report in plaintiff's possession precluded recovery by alerting plaintiff to the problem with the public offering underwritten by plaintiff could not be determined on a motion to dismiss:

Plaintiff, a lead underwriter on a public offering of a Chinese corporation, claimed that defendant law firm was negligent in failing to uncover material misrepresentations made by the corporation in connection with the offering. Plaintiff sufficiently asserted that but for defendant's negligence, plaintiff would have ceased its involvement in the public offering and avoided the fees, expenses and other damages it incurred in defending against, as well as settling claims against it … .

Defendant's argument that an investigative report gave plaintiff prior constructive notice of the material misrepresentations is unavailing … . … Here, on a pre-answer motion to dismiss, although plaintiff acknowledges that it had possession of the investigative report, the information contained in the report cannot, at this stage, be described as explicitly putting plaintiff on notice and not requiring counsel's interpretation of the information. Defendant “may not shift to the client the legal responsibility it was specifically hired to undertake” … . Macquarie Capital (USA) Inc. v Morrison & Foerster LLP, 2018 NY Slip Op 00091, First Dept 1-9-18

ATTORNEYS (MALPRACTICE, COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))/NEGLIGENCE (ATTORNEYS, LEGAL MALPRACTICE, COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))/LEGAL MALPRACTICE (COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))

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DEFENDANT’S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT).

The First Department noted that defendant's statement memorialized in a police report, acknowledging he did not stop at a red light, was an admission and a conflicting statement made later presented only a feigned issue of fact:

The police accident report and the affidavit of plaintiff Jose Colon were sufficient to demonstrate that defendant Jason S. Gilbert's negligence in failing to stop for the red light and yield the right of way in the intersection was the sole proximate cause of the accident… . His affidavit also showed the absence of comparative negligence in that he stated that he was going 25 miles per hour, looking straight ahead in the direction of travel, and could not see defendants' van because of a chain link fence, train trestle, and the height of his motor scooter… .

Although Gilbert denied that he stated to the police that he did not know that he had to stop for the red light, the court correctly concluded that the affidavit was insufficient to raise an issue of fact because statements by a party in a police accident report may constitute admissions, and later conflicting statements containing a different version of the facts present only a feigned issue of fact … . Colon v Vals Ocean Pac. Sea Food, Inc., 2018 NY Slip Op 00097, First Dept 1-9-18

NEGLIGENCE (TRAFFIC ACCIDENTS, EVIDENCE, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/EVIDENCE (POLICE REPORTS, NEGLIGENCE, TRAFFIC ACCIDENTS, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/TRAFFIC ACCIDENTS (POLICE REPORTS, EVIDENCE, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/POLICE REPORTS (EVIDENCE, TRAFFIC ACCIDENTS, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))

DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT).

The First Department determined defendant's motion for summary judgment in this personal injury case was properly granted. Plaintiff, a delivery truck driver, was injured unloading loose boxes from a trailer owned by defendant. Plaintiff alleged the shrink wrap securing the boxes broke, which led to his injury unloading the loose boxes. The defendant demonstrated it lacked actual and constructive notice of the failure of the shrink wrap. The fact that shrink wrap had failed on other occasions did not raise a question of fact. The court noted that plaintiff was not obligated to pick up the loose boxes, so the failed shrink wrap was a condition leading to his injury but was not the cause:

Defendant established its entitlement to judgment as a matter of law first by showing that it did not create the alleged hazardous condition. Defendant submitted, inter alia, plaintiff's testimony that he and defendant's employees inspected the trailer before he left defendant's facility to commence deliveries, and did not observe loose boxes on the floor. Nor did plaintiff observe loose boxes when he re-secured the load after his first delivery on the day of his accident … . Defendant also showed that it lacked actual or constructive notice that there were boxes on the trailer's floor. Plaintiff testified he did not notify defendant about the loose boxes before he decided to manually unload them at his second delivery of the day … . …

The possibility of injury arose only when plaintiff voluntarily opted to pick up the boxes and toss them to a store employee, even though he was not required to do so … .

Furthermore, plaintiff's certified packing expert failed to identify any professional or industry standard to substantiate his assertions … . The fact that defendant may have been aware that shrink-wrapping had previously come loose from other pallets did not establish that defendant had constructive notice that the subject pallet was loose before plaintiff sustained the injuries alleged … . Lynch v C & S Wholesale Grocers, Inc., 2018 NY Slip Op 00110, First Dept 1-9-18

NEGLIGENCE (NOTICE OF DANGEROUS CONDITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT))/NOTICE (NEGLIGENCE, DANGEROUS CONDITION,  DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT))

EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff's testimony, which presented conflicting descriptions of where she slipped and fell, was sufficient to raise a question of fact whether the fall took place in the area which had been excavated by defendant (Empire):

Empire failed to establish its entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she tripped and fell on a defect located within a crosswalk. Empire failed to show that the work it performed in the vicinity of plaintiff's fall could not have caused the defect because it was outside the area where plaintiff stated her accident occurred … . Although plaintiff did testify that she fell “[a]t least three feet” from the curb that she was approaching and Empire records show that it excavated a trench about 10 to 14 feet from the subject curb, plaintiff also stated that she was not good at measurements and twice described the accident location as being “[a]bout three-quarters” of the way across the intersection, which would be in the area of Empire's trench work. Prunella v Empire City Subway Co., 2018 NY Slip Op 00100, First Dept 1-9-18

NEGLIGENCE (SLIP AND FALL, EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT))/SLIP AND FALL (EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT))/SUMMARY JUDGMENT (SLIP AND FALL, EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT))

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS INTERSECTION COLLISION CASE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER DID NOT STOP AT A STOP SIGN, ALLEGATIONS OF DEFENDANT’S COMPARATIVE NEGLIGENCE INSUFFICIENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant's (Bishop's) motion for summary judgment should have been granted in this intersection traffic accident case. The driver of the car in which plaintiff was a passenger (Pulinario) failed to stop at a stop sign. No question of fact was raised about Bishop's comparative negligence:

Bishop met her prima facie burden for summary judgment by demonstrating that Pulinario was negligent as a matter of law, and that Bishop was not negligently operating her vehicle. Bishop and plaintiff testified that Pulinario failed to stop for a stop sign, which is a violation of Vehicle & Traffic Law §§ 1142(a) and 1172(a), which constitutes negligence as a matter of law… . Bishop, who had the right of way, was ” entitled to anticipate that other vehicles will obey the traffic laws that require them to yield,' and ha[d] no duty to watch for and avoid a driver who might fail to stop . . . at a stop sign'” … .

Although a driver lawfully entering an intersection may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection … , plaintiff and Pulinario failed to raise a triable material issue of fact as to whether Bishop was negligent. The evasive measures that Bishop took during the less than three seconds before impact did not constitute negligence, “under the emergency-like circumstances confronting her” … . Gonzalez v Bishop, 2018 NY Slip Op 00095, First Dept 1-9-18

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS INTERSECTION COLLISION CASE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER DID NOT STOP AT A STOP SIGN, ALLEGATIONS OF DEFENDANT'S COMPARATIVE NEGLIGENCE INSUFFICIENT (FIRST DEPT))/TRAFFIC ACCIDENTS (DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS INTERSECTION COLLISION CASE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER DID NOT STOP AT A STOP SIGN, ALLEGATIONS OF DEFENDANT'S COMPARATIVE NEGLIGENCE INSUFFICIENT (FIRST DEPT))

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SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT).

The Third Department determined the defendants who had contracted with the property owner/manager to remove snow from the parking lot where plaintiff slipped and fell on ice were not liable to plaintiff under an Espinal exception:

It is well-settled that a party that contracts with a property owner to provide snow and ice removal services cannot be liable to a third party who is injured on the property unless “(1) . . . the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties launche[d] a force or instrument of harm; (2) . . . the plaintiff detrimentally relie[d] on the continued performance of the contracting party's duties; [or] (3) . . . the contracting party has entirely displaced the other party's duty to maintain the premises safely” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002] … ).

… [W]hile [the snow removal contractor] retained some independent authority, we cannot conclude that the agreement “displaced entirely” [the property owner's] duty to maintain the property … . …

[The defendants' meteorologist's] affidavit fails to raise a material question of fact, inasmuch as the evidence demonstrates only that defendants may have failed to clear all of the ice and snow, a fact that does not constitute the affirmative creation of a dangerous condition … . Hutchings v Garrison Lifestyle Pierce Hill, LLC, 2018 NY Slip Op 00057, Third Dept 1-4-18

NEGLIGENCE (SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/SLIP AND FALL (SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/CONTRACT LAW (NEGLIGENCE, SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/ESPINAL EXCEPTIONS (NEGLIGENCE, CONTRACT LAW, SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/SNOW REMOVAL CONTRACTORS (NEGLIGENCE, SLIP AND FALL, SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))

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