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VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the county was obligated to provide uninsured motorist coverage to respondent, who was injured by an uninsured driver while driving a county car. The county argued it was exempt from providing uninsured motorist coverage pursuant to Vehicle and Traffic Law 370:

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“[T]he Legislature has specifically declared its grave concern that motorists who use the public highways be financially responsible to ensure that innocent victims of motor vehicle accidents be recompensed for their injuries and losses'” … . Thus, although the Legislature authorized municipalities to be self-insured pursuant to the exception in Vehicle and Traffic Law § 370(1), it did not exculpate them from the responsibility of providing uninsured motorist protection … . Matter of County of Suffolk v Johnson, 2018 NY Slip Op 00552, Second Dept 1-31-18

MUNICIPAL LAW (INSURANCE LAW, VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT))/INSURANCE LAW (MUNICIPAL LAW, VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT))/UNINSURED MOTORIST COVERAGE (MUNICIPAL LAW, VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (MUNICIPAL LAW, INSURANCE LAW,  VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT))

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ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case should have been granted. Although the lease obligated defendants to make repairs, defendants established they did not create the alleged hazardous condition and did not have actual or constructive notice of it:

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The plaintiff allegedly was injured when he tripped and fell off of the front stoop of a house that he was renting from the defendants, who owned the house. The plaintiff testified at a deposition that, as he exited the house, he stepped out onto the landing, and then down one stair. When he realized that he forgot to lock the interior door to the house, he stepped back onto the landing and attempted to open the outer door to the house. He alleged that the outer door extended beyond the edge of the landing, which made it difficult to stand on the landing and open the door at the same time. He further alleged that, as he tried to open the outer door, he lost his footing and began to fall. He grabbed the handrail to stop his fall, but the handrail broke.

“An out-of-possession landlord that has assumed the obligation to make repairs to its property cannot be held liable for injuries caused by a defective condition at the property unless it either created the condition or had actual or constructive notice of it” … . Amster v Kromer, 2018 NY Slip Op 00538, Second Dept 1-31-18

NEGLIGENCE (ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LANDLORD-TENANT (SLIP AND FALL, ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/OUT OF POSSESSION LANDLORD (SLIP AND FALL, ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT).

The Second Department noted that the sentencing court did not make a youthful offender determination, which must be made in every case where a defendant is eligible. The matter was remitted for the determination:

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CPL 720.20(1) requires a court to make a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it … . Here, as the People correctly concede, the record does not demonstrate that the Supreme Court made such a determination. Accordingly, we vacate the sentence imposed, and remit the matter to the Supreme Court, Kings County, for resentencing after making this determination … . We express no opinion as to whether the court should afford youthful offender status to the defendant. People v Keizer, 2018 NY Slip Op 00438, Second Dept 1-24-18

CRIMINAL LAW (YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT))/YOUTHFUL OFFENDER (CRIMINAL LAW, YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT))/SENTENCING (CRIMINAL LAW, (YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT))

QUESTIONS OF FACT WHETHER PAYMENT WAS PURSUANT TO AN ORAL CONTRACT, THEREBY TAKING THE CONTRACT OUT OF THE STATUTE OF FRAUDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether a payment was made on an oral contract, thereby taking the contract out of the statute of frauds. The written contract (Assignment of Units) mentioned only a transfer of ownership of Emerson Associates. But there was a question of fact whether the payment was actually made pursuant to an oral contract to transfer ownership of Emerson Partners:​

[Defendant] raised triable issues of fact as to whether [plaintiffs] orally agreed to transfer their ownership interests in Emerson Partners and whether … such an agreement was not invalid under the statute of frauds because … the payments of $230,000 … constituted partial performance unequivocally referable to the oral agreement … . … [T]here was no evidence demonstrating that the alleged oral agreement had ” absolutely no possibility in fact and law'” of being performed within a year … . Meagher v Doscher, 2018 NY Slip Op 00420, Second Dept 1-24-18

CONTRACT LAW (ORAL CONTRACT, STATUTE OF FRAUDS, QUESTIONS OF FACT WHETHER PAYMENT WAS PURSUANT TO AN ORAL CONTRACT, THEREBY TAKING THE CONTRACT OUT OF THE STATUTE OF FRAUDS (SECOND DEPT))/ORAL CONTRACT (STATUTE OF FRAUDS, QUESTIONS OF FACT WHETHER PAYMENT WAS PURSUANT TO AN ORAL CONTRACT, THEREBY TAKING THE CONTRACT OUT OF THE STATUTE OF FRAUDS (SECOND DEPT))/STATUTE OF FRAUDS (ORAL CONTRACT,  QUESTIONS OF FACT WHETHER PAYMENT WAS PURSUANT TO AN ORAL CONTRACT, THEREBY TAKING THE CONTRACT OUT OF THE STATUTE OF FRAUDS (SECOND DEPT))

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THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT).

The Second Department determined Supreme Court properly denied the motion to compel discovery because the requested documents were protected by the common interest privilege (an exception to the usual rule re: waiver of the attorney-client privilege):

The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege … . To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party… . “The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar” … . Moreover, the communication must “relate to litigation, either pending or anticipated, in order for the exception to apply” … . Saint Annes Dev. Co. v Russ, 2018 NY Slip Op 00451, Second Dept 1-24-18

CIVIL PROCEDURE (PRIVILEGE, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/ATTORNEYS (PRIVILEGE, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/PRIVILEGE (COMMON INTEREST, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (HE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/ATTORNEY-CLIENT PRIVILEGE (COMMON INTEREST, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))

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PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined defendant’s motion for a preliminary injunction was properly denied, but Supreme Court should not have dismissed the complaint sua sponte. The underlying action sought a declaratory judgment that plaintiff was the owner of shares of stock allocated to a cooperative apartment. The plaintiff moved for a preliminary injunction in the pending holdover proceeding:

To obtain a preliminary injunction, the moving party must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor (see CPLR 6301…). “The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court” … . Here, the plaintiff did not sustain his burden of establishing a likelihood of success on the merits.

However, inasmuch as there was neither notice to the parties by the Supreme Court nor an application by the defendant seeking dismissal, it was error for the court to, sua sponte, direct the dismissal of the complaint in this action … . Gonzalez v 231 Maujer St., HDFC, 2018 NY Slip Op 00412, Second Dept 1-24-18

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF COMPLAINT, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/SUA SPONTE (DISMISSAL OF COMPLAINT, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))

INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT).

The Second Department determined Supreme Court properly allowed plaintiff to extend the time to serve the summons and complaint. The initial service was timely but defective. In the mean time, the statute of limitations had run:

Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306-b). If service is not made within the time provided, the court, upon motion, must dismiss the action without prejudice, or “upon good cause shown or in the interest of justice, extend the time for service” … . “An extension of time for service is a matter within the court’s discretion” … . Here, while the action was timely commenced, the statute of limitations had expired when the plaintiff cross-moved for relief, the timely service of process was subsequently found to have been defective, and the defendant had actual notice of the action within 120 days of commencement of the action… . Moreover, there was no prejudice to the defendant attributable to the delay in service … . Chan v Zoubarev, 2018 NY Slip Op 00402, Second Dept 1-24-18

CIVIL PROCEDURE (EXTEND TIME TO EFFECT SERVICE, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/SERVICE OF PROCESS (EXTEND TIME, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/STATUTE OF LIMITATIONS (SERVICE OF PROCESS, EXTEND TIME, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/CPLR 306-b (EXTEND TIME TO EFFECT SERVICE, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))

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ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT).

The Second Department determined Supreme Court properly found that cladding and a drip edge plaintiff added to a party wall constituted a trespass. But Supreme Court should not have granted summary judgment on the issue whether defendant was entitled to an injunction directing plaintiffs to remove the cladding and drip edge:

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… [T]he Supreme Court erred in granting summary judgment to the defendant on the issue of whether it was entitled to an injunction directing the plaintiffs to remove the cladding and drip edge. RPAPL 871(1) provides that an “action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land. Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify.” In order to obtain injunctive relief pursuant to RPAPL 871(1), a party is “required to demonstrate not only the existence of [an] encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to [the encroaching party] from granting such relief” … . Here, the defendant failed to demonstrate the absence of any triable issues of fact concerning whether the balance of equities weighed in its favor … . Kimball v Bay Ridge United Methodist Church, 2018 NY Slip Op 00417, Second Dept 1-24-18

REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (TRESPASS, PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/TRESPASS (PARTY WALL, ENCROACHMENT,  ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/ENCROACHMENT (PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/PARTY WALL (TRESPASS, ENCROACHMENT, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/ENCROACHMENT (PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/INJUNCTION (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, PARTY WALL, ENCROACHMENT, TRESPASS, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))

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RELEASE WHICH PERTAINED TO MEDICAL CENTER AND ANY JOINT TORTFEASORS DID NOT PRECLUDE A MEDICAL MALPRACTICE ACTION AGAINST SURGEONS WHO WERE NOT EMPLOYEES OF THE MEDICAL CENTER, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a release which related to a medical center and any joint tortfeasors did not preclude a medical malpractice action against doctors who were not employees of the medical center. The plaintiff had undergone surgery for a deviated septum. During the surgery plainitff’s teeth were damaged by the anesthesiologist, an employee of the medical center. The medical center settled with the plaintiff and plaintiff signed a release. The medical malpractice action against the surgeons was not related to the damaged teeth:

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… [T]he release is unambiguously limited to tortfeasors jointly liable with the Medical Center. “At common law the joint and several liability imposed on joint tort-feasors was indivisible, and any one of the joint tort-feasors was liable to the injured party for the entire damage”… . A hospital is not vicariously liable for the malpractice of independently retained doctors who are not employees of the hospital or are not held out as agents of the hospital … . Here, the defendants do not contend that the defendant doctors were employees of the Medical Center, or that they held themselves out as agents of the Medical Center. As such, there would be no basis for joint liability with the Medical Center. Further, the injuries claimed in this action are different from those claimed against and settled with the Medical Center. The lost crown and broken teeth caused by the anesthesiologist, an employee of the Medical Center, are completely distinct from the damages claimed in this action. Hoffmann v Horn, 2018 NY Slip Op 00414, Second Dept 1-24-18

NEGLIGENCE (MEDICAL MALPRACTICE, RELEASE WHICH PERTAINED TO MEDICAL CENTER AND ANY JOINT TORTFEASORS DID NOT PRECLUDE A MEDICAL MALPRACTICE ACTION AGAINST SURGEONS WHO WERE NOT EMPLOYEES OF THE MEDICAL CENTER, SUPREME COURT REVERSED (SECOND DEPT))MEDICAL MALPRACTICE ( RELEASE WHICH PERTAINED TO MEDICAL CENTER AND ANY JOINT TORTFEASORS DID NOT PRECLUDE A MEDICAL MALPRACTICE ACTION AGAINST SURGEONS WHO WERE NOT EMPLOYEES OF THE MEDICAL CENTER, SUPREME COURT REVERSED (SECOND DEPT))/CONTRACT LAW (RELEASES, MEDICAL MALPRACTICE, RELEASE WHICH PERTAINED TO MEDICAL CENTER AND ANY JOINT TORTFEASORS DID NOT PRECLUDE A MEDICAL MALPRACTICE ACTION AGAINST SURGEONS WHO WERE NOT EMPLOYEES OF THE MEDICAL CENTER, SUPREME COURT REVERSED (SECOND DEPT))/RELEASES (MEDICAL MALPRACTICE, RELEASE WHICH PERTAINED TO MEDICAL CENTER AND ANY JOINT TORTFEASORS DID NOT PRECLUDE A MEDICAL MALPRACTICE ACTION AGAINST SURGEONS WHO WERE NOT EMPLOYEES OF THE MEDICAL CENTER, SUPREME COURT REVERSED (SECOND DEPT)

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OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant out of possession landlord’s motion for summary judgment in this slip and fall case was properly denied. The lease imposed a duty to repair (here plaintiff slipped on water from a leaking water heater) and the landlord’s papers did not demonstrate a lack of actual or constructive notice:

 

An out-of-possession landlord and its agent are not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty … .

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint. They submitted a copy of the lease, which established that Felice was required to remedy “any defective condition in any plumbing, heating system or electrical lines located in the demised premises” following prompt notice by the tenant. The defendants’ submissions, however, failed to eliminate all triable issues of fact, including whether they had actual or constructive notice of the allegedly defective hot water heater, thereby placing upon them the duty to repair it pursuant to the lease. Accordingly, the motion was properly denied, regardless of the sufficiency of the plaintiff’s opposition papers … . Irizarry v Felice Realty Corp., 2018 NY Slip Op 00415, Second Dept 1-24-18

NEGLIGENCE (SLIP AND FALL, OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/OUT OF POSSESSION LANDLORD  (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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