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THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT).

The Second Department determined defendant's motion for summary judgment in this contract action was properly granted. The agreement for the purchase of satellite television equipment was silent about fees for Internet service, which constituted a material term. Therefore the agreement was merely an unenforceable agreement to agree:

“To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms” … . “[A] court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to” … . Accordingly, “[i]f an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract” … . “While there are some instances where a party may agree to be bound to a contract even where a material term is left open . . . there must be sufficient evidence that both parties intended that arrangement” … . “[A] mere agreement to agree, in which a material term is left for future negotiations, is unenforceable” … , unless “a methodology for determining the material terms can be found within the four corners of the agreement or the agreement refers to an objective extrinsic event, condition, or standard by which the material terms may be determined” … .

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence establishing that the contract lacked a material term regarding the price or fees to be paid to the plaintiff for Internet-related service, and therefore constituted an unenforceable agreement to agree … . Total Telcom Group Corp. v Kendal on Hudson, 2018 NY Slip Op 00189, Second Dept 1-10-18

CONTRACT LAW (THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT))/AGREEMENT TO AGREE  (THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT))/MATERIAL TERM (CONTRACT LAW, THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT))/PRICE (CONTRACT LAW, MATERIAL TERM, THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT))

DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO DISMISS THE COMPLAINT FOR FAILURE OF PROPER SERVICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing about whether the complaint should be dismissed for failure to properly serve her:

“A process server's affidavit of service ordinarily constitutes prima facie evidence of proper service” … . “Bare and unsubstantiated denials are insufficient to rebut the presumption of service” … . “However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing”… . “If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue” … .

Here, the Supreme Court erred in determining that branch of the motion of the defendant Delia Archibong (hereinafter the defendant) which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction without first conducting a hearing. The defendant demonstrated her entitlement to a hearing on the issue of service through her affidavit, in which she denied that she knew anyone by the name of Tom Jonel, the person allegedly served at her house, that no one by that name or with that physical description lived in her house, and that she was the only person at home when the summons and complaint were allegedly served … . HSBC Bank USA, N.A. v Archibong, 2018 NY Slip Op 00131, Second Dept 1-10-18

CIVIL PROCEDURE (SERVICE OF PROCESS, DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO DISMISS THE COMPLAINT FOR FAILURE OF PROPER SERVICE (SECOND DEPT))/SERVICE OF PROCESS (DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO DISMISS THE COMPLAINT FOR FAILURE OF PROPER SERVICE (SECOND DEPT))

ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT).

The Second Department determined petitioner-attorney was entitled to fees earned in a medical malpractice action prior to the petitioner's suspension and disbarment. Petitioner sought the fees from substitute counsel (DMR) under a quantum meruit theory. Petitioner's failure to file a retainer statement and the absence of a fee-sharing agreement did not preclude quantum meruit recovery:

… [T]he petitioner was not precluded from recovery on the ground that he failed to file a retainer statement with the Office of Court Administration in accordance with 22 NYCRR 691.20(a)(1), since the petitioner did not seek the recovery of fees on a breach of contract theory, but solely on a quantum meruit basis … . The lack of a fee-sharing agreement between the petitioner and DMR also did not preclude the petitioner from seeking the recovery of fees against DMR … . Moreover, the petitioner did not forfeit his right to recover fees for the work he performed in the medical malpractice action prior to his suspension … . Matter of Grossbarth v Dankner, Milstein & Ruffo, P.C., 2018 NY Slip Op 00144, Second Dept 1-10-18

ATTORNEYS (FEES, QUANTUM MERUIT, ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))/ATTORNEY'S FEES (QUANTUM MERUIT, ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))/RETAINER STATEMENT (ATTORNEY'S FEES,  ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))/FEE SHARING AGREEMENT (ATTORNEY'S FEES,  ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))

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NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined neither the abutting property owner nor the city were entitled to summary judgment in this sidewalk slip and fall case. The property owner did not demonstrate it did not have a duty to maintain the sidewalk and it did not have constructive knowledge of the defect. The city demonstrated it did not have written notice of the defect but did not demonstrate it did not create the defect:

Approximately 1½ months prior to the incident, the defendant City of Long Beach had excavated a portion of the sidewalk and backfilled it with a temporary patch, cordoning off the area with safety barrels and yellow caution tape. At the time of the incident, the safety barrels and yellow caution tape were not present. …

With respect to [the property owner], “[g]enerally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land” … . “The exceptions to this rule are when the landowner actually created the dangerous condition, made negligent repairs that caused the condition, created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk” … . The Charter of the City of Long Beach imposes a duty on landowners to maintain and repair abutting sidewalk … . …

The City's evidentiary submissions failed to eliminate triable issues of fact as to whether its work on the sidewalk immediately left it in a condition that was dangerous to pedestrians and bicyclists … . Since the City did not establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact … . Trela v City of Long Beach, 2018 NY Slip Op 00190, Second Dept 1-10-18

NEGLIGENCE (SLIP AND FALL, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))

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THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined plaintiff's motion to dismiss the third-party complaint was properly granted because the third-party action was commenced four years after the suit began and would unduly delay the main action. The Second Department also determined that Supreme Court properly ordered that defendants disclose information about post-accident repairs in this stairway slip and fall case. Defendants had not disclosed the identity of the party which exercised control over the stairway:

“CPLR 1010 provides a safety valve for cases in which the third-party claim will unduly delay the determination of the main action or prejudice the substantial rights of any party'”… . Where the record indicates that a third-party plaintiff knowingly and deliberately delayed in commencing the third-party action, the Supreme Court acts within its discretion to dismiss the third-party complaint… . Contrary to the defendants' contentions, the court correctly granted the plaintiff's motion to dismiss the third-party complaint because the defendants deliberately and intentionally delayed commencing the third-party action for more than four years.

“CPLR 3101(a) requires full disclosure of all evidence material and necessary in the prosecution or defense of an action” … . ” Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case unless there is an issue of maintenance or control'” … . Contrary to the defendants' contentions, an issue exists as to the identity of the entity responsible for the structural maintenance and control of the stairway. Accordingly, the Supreme Court correctly directed the defendants to produce discovery concerning the post-accident repairs. Soto v CBS Corp., 2018 NY Slip Op 00185, Second Dept 1-10-18

NEGLIGENCE (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/EVIDENCE  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/POST-ACCIDENT REPAIRS (SLIP AND FALL, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/CIVIL PROCEDURE  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/CPLR 1010  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/CPLR 3101  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/REPAIRS, POST-ACCIDENT  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))

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EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department determined an expert affidavit, saying the plaintiff pedestrian did not look for traffic before starting across the street, was speculative and did not raise a question of fact. Plaintiff's motion for summary judgment properly granted:

The plaintiff testified that she looked in both directions and saw no vehicles. When the pedestrian signal changed in her favor, she waited “a bit,” looked around to her right and left three to four times, and then started walking while looking around as she walked. She had taken about 10 steps before the subject accident occurred. She did not see the defendants' vehicle prior to impact. The defendant driver testified at his deposition that he started his right turn and did not realize there was an accident until he felt contact, and heard his front-seat passenger yell that someone was there. He admitted that he never saw the plaintiff prior to contact with the front of his vehicle. He was cited for the traffic violation of failing to yield the right-of-way, and pleaded guilty to that violation.

In opposition, the defendants submitted the affidavit of an expert, stating that in his opinion, the plaintiff did not stop and wait for the light, and she did not look to the left or the right. Yuemei Wu v Automotive Rentals, Inc., 2018 NY Slip Op 00192, Second Dept 1-10-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PEDESTRIANS, EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT))/EVIDENCE (EXPERT OPINION, TRAFFIC ACCIDENTS, PEDESTRIANS, EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT))/EXPERT OPINION (TRAFFIC ACCIDENTS, PEDESTRIANS, EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT))

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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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