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THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT).

The Third Department determined defendant property maintenance company’s motion for summary judgment in this ice slip and fall case was properly denied. Plaintiff’s testimony about the thickness of the ice raised a question of fact whether defendant had constructive notice of it. The property owner’s motion for summary judgment on the breach of contract action against the property maintenance company was properly granted. In the contract, the property maintenance company agreed to purchase liability insurance, which it did not do. An agreement to purchase insurance is not the same as a promise to indemnify and an action on the agreement need not await a judgment in the slip and fall case:

… [T]he record … includes plaintiff’s testimony that there was no lighting in the sidewalk area and no witness was able to contradict her account that there was ice in the area at the time that she fell. Further, there was no proof that anyone had performed a routine inspection of the area after 7:00 a.m. on the day of her alleged fall, i.e., at any time within 10 hours of the fall, but also no proof that there had been further accumulation of snow after the snowfall the day before. … [I]t is clear that plaintiff raised a triable issue of fact with regard to whether defendant had constructive notice of any dangerous conditions… . The key question to be resolved by the trier of fact is whether, during this 10-hour lapse of time … there was further precipitation that created a dangerous or unsafe condition on the sidewalk and, if so, whether there was sufficient time for defendant[s] … “to reasonably have discovered and remedied it” … .Plaintiff’s description of the thickness and extent of ice on the sidewalk, if accepted, is relevant to the factual question of how long it was present and whether it was visible and apparent such that it would have been discovered upon routine inspection, with sufficient time to remedy it … . Calvitti v 40 Garden, LLC, 2017 NY Slip Op 08241, Third Dept 11-22-17

NEGLIGENCE (SLIP AND FALL, THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))/SLIP AND FALL (THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))/SIDEWALKS (SLIP AND FALL, THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))/INSURANCE LAW (SLIP AND FALL, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))

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TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF’S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF’S DECEDENT’S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF’S DECEDENT (SECOND DEPT).

The Second Department determined plaintiff’s decedent could properly have been found to be a third-party beneficiary of a contract between a transmission repair company (Advanced) and plaintiff’s decedent’s employer (CCC).  CCC owned a garbage truck which was repaired by Advanced. There was no neutral interlock system on the truck. Such a system would have prevented the truck from lurching backward and pinning plaintiff’s decedent between the truck and a dumpster:

 

… [T]he record demonstrates that Advanced owed the decedent a duty as a third-party beneficiary of its contractual relationship between itself and CCC … . If the parties to the contract intended to confer a direct benefit on the decedent, a duty is owed to the decedent… . Although there was no written contract between the contracting parties, an intent to confer a direct benefit on the decedent may also be inferred from the circumstances …  including the parties’ oral agreement and course of conduct … .

An employee is not automatically a third-party beneficiary of a service contract between his or her employer and another party … . However, if the employer’s intent was to benefit its employees, third-party beneficiary status may be inferred …

At trial, the plaintiffs asserted that a proximate cause of the accident was the absence of a functioning neutral interlock system on the truck. The neutral interlock system would have prevented the truck from going backward while garbage was being loaded in the truck. CCC recognized that a neutral interlock system was an important safety feature of the truck. That system was part of the transmission system, which was serviced by Advanced. At trial, Advanced acknowledged that when the truck was road tested in November 2006, some six months prior to the accident, CCC should have been informed if a neutral interlock system was not working or not present, since this was one of the primary safety features of the truck.

The evidence indicated that Advance and CCC recognized that the neutral interlock system was an important safety feature. Further, it is clear from the record that Advance and CCC recognized that this safety feature’s primary benefit was to CCC’s employees who loaded the garbage trucks. Accordingly, it could be inferred that the decedent was a third-party beneficiary of the contractual relationship between CCC and Advanced. Vargas v Crown Container Co., Inc., 2017 NY Slip Op 08297, Second Dept 11-22-17

 

NEGLIGENCE (DUTY ARISING FROM CONTRACT, TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF’S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF’S DECEDENT’S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF’S DECEDENT (SECOND DEPT))/CONTRACT LAW (NEGLIGENCE, DUTY ARISING FROM CONTRACT, TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF’S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF’S DECEDENT’S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF’S DECEDENT (SECOND DEPT))/EMPLOYMENT LAW (DUTY TO EMPLOYEE ARISING FROM EMPLOYER’S CONTRACT FOR REPAIR, TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF’S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF’S DECEDENT’S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF’S DECEDENT (SECOND DEPT))/THIRD PARTY BENEFICIARY (NEGLIGENCE, DUTY ARISING FROM CONTRACT, TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF’S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF’S DECEDENT’S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF’S DECEDENT (SECOND DEPT))

DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this car accident case should not have been granted. Plaintiff apparently made a left turn in front of defendant’s car which was in the on-coming lane. Defendant struck plaintiff’s car:

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“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident”… . Pursuant to Vehicle and Traffic Law § 1141, the operator of a vehicle intending to turn left within an intersection must yield the right-of-way to any oncoming vehicle which is within the intersection or so close to it as to constitute an immediate hazard … . A violation of this statute constitutes negligence per se … .

The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law … . A driver is negligent where he or she failed to see that which, through proper use of his or her senses, he or she should have seen … . The driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident … .

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Here, in support of the motion, the defendant submitted, inter alia, the deposition testimony of the parties. The defendant attested that she never saw the front of the plaintiff’s vehicle and that when she first saw the plaintiff’s vehicle, which was “moving like a snail,” she saw the middle part of the vehicle directly ahead of her. Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, the defendant failed to establish, prima facie, her freedom from comparative fault and that the plaintiff’s alleged violation of the Vehicle and Traffic Law was the sole proximate cause of the accident … . Aponte v Vani, 2017 NY Slip Op 08252, Second Dept 11-22-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS CAR ACCIDENT CASE (SECOND DEPT))/TRAFFIC ACCIDENTS ( DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS CAR ACCIDENT CASE (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS CAR ACCIDENT CASE (SECOND DEPT)

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MOTION TO AMEND THE BILL OF PARTICULARS TO ADD A NEW THEORY OF LIABILITY WHICH WAS FIRST RAISED BY PLAINTIFFS’ EXPERT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion to amend the bill of particulars to add a new theory of liability should have been granted in this medical malpractice action. The amendment was based upon plaintiffs’ expert’s disclosures and the motion to amend was made shortly after the expert raised the issue:

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While leave to amend a bill of particulars is generally freely given in the absence of prejudice or surprise (see CPLR 3025[b]), where a motion for leave to amend a bill of particulars alleging a new theory of liability not raised in the claim or the original bill is made on the eve of trial, leave of court is required, and “judicial discretion should be exercised sparingly, and should be discreet, circumspect, prudent, and cautious”… . In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom … . Here, the delay would not have been prejudicial since the plaintiffs’ amendment sought to include a theory of causation of the decedent’s death raised in the defendants’ expert disclosures. Moreover, the plaintiffs did not delay in seeking the amendment after receiving the defendants’ expert disclosures, and the defendants were permitted further discovery … . Moore v Franklin Hosp. Med. Center-North Shore-Long Is. Jewish Health Sys., 2017 NY Slip Op 08263, Second Dept 11-22-17

 

CIVIL PROCEDURE (MOTION TO AMEND THE BILL OF PARTICULARS TO ADD A NEW THEORY OF LIABILITY WHICH WAS FIRST RAISED BY PLAINTIFFS’ EXPERT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/BILL OF PARTICULARS (CIVIL PROCEDURE, MOTION TO AMEND THE BILL OF PARTICULARS TO ADD A NEW THEORY OF LIABILITY WHICH WAS FIRST RAISED BY PLAINTIFFS’ EXPERT SHOULD HAVE BEEN GRANTED (SECOND DEPT/NEGLIGENCE (CIVIL PROCEDURE, MEDICAL MALPRACTICE, MOTION TO AMEND THE BILL OF PARTICULARS TO ADD A NEW THEORY OF LIABILITY WHICH WAS FIRST RAISED BY PLAINTIFFS’ EXPERT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, MOTION TO AMEND THE BILL OF PARTICULARS TO ADD A NEW THEORY OF LIABILITY WHICH WAS FIRST RAISED BY PLAINTIFFS’ EXPERT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3025[b] (MOTION TO AMEND THE BILL OF PARTICULARS TO ADD A NEW THEORY OF LIABILITY WHICH WAS FIRST RAISED BY PLAINTIFFS’ EXPERT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (CT APP).

The Court of Appeals, reversing the appellate division, over a dissent, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff tripped over a cord tied to a barrel in a parking lot. The majority offered no factual explanation for the reversal. Lau v Margaret E. Pescatore Parking, Inc., 2017 NY Slip Op 08170, CtApp 11-21-17

 

NEGLIGENCE (SLIP AND FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (CT APP))/SLIP AND FALL (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (CT APP))

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ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant’s motion for summary judgment in this fatal car accident case should not have been granted. Plaintiffs’ decedent was killed when the car in which he was a passenger entered a park at night and crashed after failing to negotiate a curve in the road. The driver, Benedict, was intoxicated and there was evidence the car was driven at high speed. Although a sign at the park indicated it was closed at dusk, the gate was open, there were no signs indicating an upcoming  curve in the road, and there were no speed limit signs. The driver had never been on the road before:

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A municipality has a duty to maintain its roads in a reasonably safe condition “in order to guard against contemplated and foreseeable risks to motorists,” including risks related to a driver’s negligence or misconduct… . In other words, a municipality is not relieved of liability for failure to keep its roadways in a reasonably safe condition “whenever [an accident] involves driver error” … . Defendant’s duty to maintain the road was therefore not negated by Benedict’s intoxication or the fact that the park was closed when the accident occurred … , and we conclude that defendant did not establish as a matter of law that Benedict’s presence under those circumstances was unforeseeable … . Inasmuch as defendant presented no evidence that the road was reasonably safe at night in the absence of the safety measures proposed by plaintiffs, we conclude that defendant failed to establish as a matter of law that it was not negligent … .

We further agree with plaintiffs that the court erred in determining as a matter of law that Benedict’s actions were the sole proximate cause of the accident. Although defendant presented evidence that Benedict was intoxicated and driving “at high speed,” we conclude that its submissions did not establish as a matter of law that Benedict’s manner of driving “would have been the same” if the safety measures proposed by plaintiffs had been in place … . Stiggins v Town of N. Dansville, 2017 NY Slip Op 08108, Fourth Dept 11-17-17

 

NEGLIGENCE (MUNICIPAL LAW, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/MUNICIPAL LAW (NEGLIGENCE, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/HIGHWAYS AND ROADS (NEGLIGENCE, MUNICIPAL LAW, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should not have been granted. There was evidence plaintiff’s son, who was riding in a pickup truck with defendant’s son, may have voluntarily participated in a drag race which led to the accident and the death of plaintiff’s son:

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Defendants cross-moved for summary judgment dismissing the complaint on the ground that the accident occurred during an “illegal street race” in which plaintiff’s son participated, that his death was the direct result of his own serious violation of the law, and that recovery on his behalf was therefore precluded as a matter of public policy under the rule of Barker v Kallash (63 NY2d 19 [1984]) and Manning v Brown (91 NY2d 116 [1997]). In the alternative, defendants sought summary judgment on the issue whether plaintiff’s son had been comparatively negligent. Supreme Court granted plaintiff’s motion and denied defendants’ cross motion, and defendants appeal.

We agree with defendants that the Barker/Manning rule may apply to a high-speed street race between motor vehicles, i.e., “a drag race as that term is commonly understood” … , even if the participants did not plan a particular race course and the incident thus did not qualify as a “speed contest” within the meaning of Vehicle and Traffic Law § 1182 (a) (1)… . The record here, however, supports conflicting inferences with respect to whether defendants’ son was engaged in a race with other pickup truck drivers … and, if so, whether plaintiff’s son was a “willing participant” in the race … . Thus, the applicability of the Barker/Manning rule is an issue of fact … . In addition, there are issues of fact with respect to the alleged comparative negligence of plaintiff’s son in choosing to ride with defendants’ son, in view of evidence that defendants’ son was under the influence of alcohol and had said that he intended to “chase . . . down” the other trucks … . We therefore conclude that the court properly denied defendants’ cross motion but erred in granting that part of plaintiff’s motion with respect to the culpable conduct defense, and we modify the order accordingly. Kovach v McCollum, 2017 NY Slip Op 08121, Fourth Dept 11-17-17

 

NEGLIGENCE (QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT))/DRAG RACE (NEGLIGENCE, QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT))/TRAFFIC ACCIDENTS (QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT))/BARKER-MANNING RULE (NEGLIGENCE, DRAG RACE, QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT))/COMPARATIVE NEGLIGENCE (DRAG RACE, QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT))

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DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a dissenting opinion, determined plaintiff properly survived defendants’ summary judgment motion in this stairway fall case. Plaintiff’s decedent died before he was deposed. There was a video of the fall but it was destroyed after decedent’s daughter requested a copy of it. The motion court held plaintiff was entitled to an adverse inference. The complaint alleged the cause of the fall was inadequate illumination and submitted a supporting affidavit by an expert:

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The dissent contends … that the issue of proximate cause must be decided as matter of law in favor of defendants because “none of [the witness to the accident or who reviewed the videotape of the accident] claimed that the decedent misstepped or lost his balance due to inadequate lighting.” The law, however, does not apply such a stringent requirement. To be sure, a plaintiff’s inability to identify the cause of a fall is fatal to an action because a finding that the defendant’s negligence proximately caused a plaintiff’s injuries would be based on speculation … . However, this simply requires that the evidence identifies the defect or hazard itself and provides sufficient facts and circumstances from which causation may be reasonably inferred … .

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The dissent cannot and does not dispute that inadequate lighting itself may constitute a dangerous condition where the inadequacy of lighting renders the appearance of premises deceptive. Such deception occurs by the illusion that two areas of the same premises are on the same level whereas, in fact, there is a change in floor level to which the available lighting does not call sufficient attention.

… [W]e find that the evidence adduced by defendants failed to eliminate all issues of fact as to whether this alleged dangerous condition on the subject stairway contributed to the decedent’s fall. Haibi v 790 Riverside Dr. Owners, Inc., 2017 NY Slip Op 08102, First Dept 11-16-17

 

NEGLIGENCE (SLIP AND FALL, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/SLIP AND FALL (INADEQUATE LIGHTING,  DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/LIGHTING (SLIP AND FALL, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/ILLUMINATION  (SLIP AND FALL, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/INADEQUATE LIGHTING (SLIP AND FALL, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/STAIRWAY  (SLIP AND FALL, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, PROXIMATE CAUSE, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/PROXIMATE CASE (SLIP AND FALL, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/SPOLIATION (SLIP AND FALL, VIDEO DESTROYED, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/VIDEO (SPOLIATION, SLIP AND FALL, VIDEO DESTROYED, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))

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PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant store’s (Me-Me’s) motion for summary judgment in this slip and fall case should not have been granted and plaintiff was entitled to an adverse inference charge because a video of the fall had been negligently LOST. Plaintiff alleged she stepped on a grape. Defendant did not demonstrate a lack of notice by submitting evidence of its general cleaning practices:

“In a premises liability case, a defendant 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”… . To provide constructive notice, “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . “To meet its initial 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” … . “Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question” … . * * *

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Since Me-Me’s loss of the video recording was negligent rather than intentional, and the loss of the recording does not completely deprive the plaintiff of the ability to prove her case, the appropriate sanction is to direct that an adverse inference charge be given at trial with respect to the unavailable recording … . Eksarko v Associated Supermarket, 2017 NY Slip Op 07975, Second Dept 11-15-17

 

NEGLIGENCE (SLIP AND FALL, PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT))/SLIP AND FALL (PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT))/EVIDENCE (SPOLIATION, SLIP AND FALL, PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT)/SPOLIATION (SLIP AND FALL, VIDEO,  PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT))/VIDEO (SLIP AND FALL, SPOLIATION,  PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT))

BUILDING OWNERS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS WET-FLOOR SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the building owners’ (Realty defendants’) motion for summary judgment in this slip and fall case was properly denied. The defendants did not eliminate questions of fact whether they had notice of or created the dangerous condition, a wet floor in the area where floor mats had been removed while a tenant was moving in:

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According to the Realty defendants’ deposition testimony, the floor in the building lobby was scheduled to be wet mopped on the Friday afternoon prior to the plaintiff’s accident on Monday, and the Realty defendants’ maintenance personnel were instructed, as part of their process, to remove the floor mats in the lobby and put them back in place after the floor was mopped dry.

…”To impose liability on a defendant for a slip and fall on an alleged dangerous condition on a floor, there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time” … .

A defendant property owner who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition nor had actual or constructive notice of it … .

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Here, the Realty defendants failed to eliminate all triable issues of fact as to whether the alleged accumulation of water on which the plaintiff slipped and fell was created by its maintenance personnel prior to the accident… . Dow v Hermes Realty, LLC, 2017 NY Slip Op 07974, Fourth Dept 11-15-17

 

NEGLIGENCE (BUILDING OWNERS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS WET-FLOOR SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (BUILDING OWNERS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS WET-FLOOR SLIP AND FALL CASE (SECOND DEPT))

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