You are here: / Second Department

Tag Archive for: Second Department

STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT.

The Second Department determined defendant Home Depot’s motion for summary judgment in this slip and fall case was properly denied. The storm in progress rule did not apply because the precipitation stopped 12 hours before the fall, and the temperature dipped below freezing 10 hours before the fall:

Home Depot failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that there was a storm in progress at the time of the injured plaintiff’s accident or that it did not have a reasonable opportunity after the cessation of the storm to remedy the allegedly dangerous condition … . The climatological data submitted by Home Depot showed that there was an accumulation of about three inches of snow, which had ceased to fall by 7:00 p.m. on January 18, 2004, about 12 hours prior to the accident, and that the temperature dropped to below freezing by 9:00 p.m., about 10 hours prior to the accident, and remained below freezing through the time of the accident. Thus, Home Depot failed to establish, prima facie, that it did not have a reasonable time to ameliorate the snow and ice condition in the parking lot … . Morris v Home Depot USA, 2017 NY Slip Op 05717, 2nd Dept 7-19-17

NEGLIGENCE (SLIP AND FALL, STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT)/SLIP AND FALL (STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT)/STORM IN PROGRESS (STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT)

QUESTION OF FACT WHETHER HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT.

The Second Department, reversing Supreme Court, determined there was a question of fact whether a latent defect was actionable under the doctrine of res ipsa loquitur. An outside step flipped up when plaintiff stepped on it, causing plaintiff to fall. The underside of the step was rotten and the nails didn’t hold. Apparently the condition of the step was not visible until the underside was exposed:

… [P]laintiff raised a triable issue of fact as to the application of the doctrine of res ipsa loquitur … . “Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event” … . A plaintiff makes a prima facie case of negligence under res ipsa loquitur by establishing three elements: ” (1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff'” … . Res ipsa loquitur does not create a presumption of negligence; rather, it is a rule of circumstantial evidence that permits, but does not require, the jury to infer negligence … ​

Here, the defendant contends that the plaintiff failed to raise an issue of fact as to the applicability of the doctrine because the homeowner did not have exclusive control over the deck steps. However, the concept of exclusive control does not require rigid application, since the general purpose of the element is to indicate from the circumstances that it was probably the negligence of the defendant, rather than another, which caused the accident … . Although there was evidence that other guests used the deck steps, the steps were located on private residential property, not an area open to the general public … . Under these circumstances, the plaintiff raised a triable issue of fact as to the homeowner’s exclusive control of the deck step and whether an inference of negligence is warranted under the doctrine of res ipsa loquitur … . Marinaro v Reynolds, 2017 NY Slip Op 05714, 2nd Dept 7-19-17

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/SLIP AND FALL (QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/LATENT DEFECT  (SLIP AND FALL, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/RES IPSA LOQUITUR (SLIP AND FALL, LATENT DEFECT, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)

DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT.

The Second Department, reversing Supreme Court, determined the defendants demonstrated the defective tile which caused plaintiff’s slip and fall constituted a trivial defect which was not actionable:

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . Here, the evidence submitted by the defendants in support of their motion included photos of the alleged defective condition as identified by the plaintiff, a damaged piece of tile, as well as measurements placing the depression at the damaged tile to be, at most, one-eighth of an inch. These photographs, along with the plaintiff’s description of the time, place, and circumstance of the injury, established, prima facie, that the alleged defect was trivial as a matter of law, and therefore, not actionable … . Kavanagh v Archdiocese of the City of N.Y., 2017 NY Slip Op 05711, 2nd Dept 7-19-17

NEGLIGENCE (SLIP AND FALL, TRIVIAL DEFECT, DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT)/SLIP AND FALL (TRIVIAL DEFECT, DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT)/TRIVIAL DEFECT (SLIP AND FALL, DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT)

DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendants did not demonstrate the raised brick over which plaintiff allegedly tripped was a trivial defect or an open and obvious defect:

The defendant failed to establish, prima facie, that the alleged defect was trivial as a matter of law. “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In support of its motion, the defendant submitted, inter alia, transcripts of the deposition testimony of the plaintiff and the Director of Horticulture of the defendant, the affidavit of an expert witness, and two photographs that the plaintiff claimed showed her lying on the walkway shortly after her accident but did not portray the raised brick on which she allegedly fell. Viewed in the light most favorable to the plaintiff as the nonmovant …, the evidence submitted by the defendant failed to eliminate all triable issues of fact as to the dimensions of the alleged defect, and failed to establish that the condition was trivial and, therefore, not actionable … . The defendant also failed to make a prima facie showing that the alleged raised brick was an open and obvious condition that is inherent to the nature of the property and could be reasonably anticipated by those using it … . Furthermore, the defendant failed to demonstrate, prima facie, that it lacked constructive notice of the allegedly raised brick … . Chojnacki v Old Westbury Gardens, Inc., 2017 NY Slip Op 05706, 2nd Dept 7-191-17

NEGLIGENCE (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/TRIVIAL DEFECT (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/OPEN AND OBVIOUS (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE 2ND DEPT.

The Second Department determined defendants were properly granted summary judgment in this ice and snow slip and fall case. The defendants demonstrated there was a storm in progress and their snow removal efforts did not create or exacerbate the condition:

” Under the so-called storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'” … . “However, even if a storm is ongoing, once a property owner elects to remove snow or ice, it must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting their deposition testimony and certified weather reports, which demonstrated that there was a storm in progress at the time of the plaintiff’s accident, and that their efforts to prevent ice accumulation neither created a hazardous condition nor exacerbated a natural hazard created by the storm … . Bradshaw v PEL 300 Assoc., 2017 NY Slip Op 05701, 2nd Dept 7-19-17

NEGLIGENCE (DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE)/SLIP AND FALL (DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE)/STORM IN PROGRESS (SLIP AND FALL, DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE)

QUESTION OF FACT WHETHER PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE OR REPAIR COVERED BY LABOR LAW 240 (1) WHEN HE FELL FROM A LADDER 2ND DEPT.

In the context of a legal malpractice action based on the failure to timely commence a Labor Law 240 (1) action, the Second Department determined there was a question of fact whether plaintiff was engaged in routine maintenance (not covered by the Labor Law) or repair (covered by the Labor Law) at the time he fell from a ladder:

Here, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the plaintiff was engaged in “repair[s]” at the time of his accident or whether he was engaged in routine maintenance. On the one hand, the defendants submitted evidence establishing that the plaintiff was changing a ballast in a light fixture at the time of his accident, a job which constitutes routine maintenance since the replacement of this component occurs in the course of normal wear and tear … . However, the defendants also submitted the plaintiff’s deposition testimony in support of their motion. The plaintiff testified at his deposition that he was in the midst of disconnecting, splicing, cleaning, and assessing the internal electrical wires in order to fix a light fixture when he fell from the ladder. Thus, the plaintiff’s deposition testimony demonstrated the existence of a triable issue of fact as to whether the plaintiff was “repairing” the light fixture at the time of his accident … . Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 2017 NY Slip Op 05709, 2nd Dept 7-19-17

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE OR REPAIR COVERED BY LABOR LAW 240 (1) WHEN HE FELL FROM A LADDER 2ND DEPT)

AFTER MOTHER CONSENTED TO A NEGLECT FINDING AND THE CHILD WAS PLACED IN KINSHIP FOSTER CARE, MOTHER SHOULD NOT HAVE BEEN AWARDED UNSUPERVISED VISITATION WITHOUT A HEARING 2ND DEPT.

The Second Department, reversing Family Court, determined mother should not have been awarded unsupervised visitation without a hearing. Mother had previously consented to a neglect finding and the child had been placed in kinship foster care:

“In a child protective proceeding pursuant to Family Court Act article 10, [t]he best interests of the children determine whether visitation should be permitted to a parent who has committed abuse or neglect. Pursuant to Family Court Act § 1061, the court may modify any order issued during the course of a child protective proceeding for good cause shown.’ As with the initial order, the modified order must reflect a resolution consistent with the best interests of the children after consideration of all relevant facts and circumstances”…  “Before making children available for unsupervised visits, a Family Court must find that a person with a history of abuse or neglect of her children has successfully overcome her prior inclinations and behavior patterns, despite what may be the best of intentions”… . Where facts material to a best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required … .

Under the circumstances of this case, a hearing was necessary to determine whether unsupervised overnight visitation between the mother and the child was in the child’s best interests … . Matter of Jeanette V. (Marina L.), 2017 NY Slip Op 05741, 2nd Dept 7-19-17

FAMILY LAW (VISITATION, AFTER MOTHER CONSENTED TO A NEGLECT FINDING AND THE CHILD WAS PLACED IN KINSHIP FOSTER CARE, MOTHER SHOULD NOT HAVE BEEN AWARDED UNSUPERVISED VISITATION WITHOUT A HEARING 2ND DEPT)/VISITATION (FAMILY LAW, AFTER MOTHER CONSENTED TO A NEGLECT FINDING AND THE CHILD WAS PLACED IN KINSHIP FOSTER CARE, MOTHER SHOULD NOT HAVE BEEN AWARDED UNSUPERVISED VISITATION WITHOUT A HEARING 2ND DEPT)/NEGLECT (VISITATION, AFTER MOTHER CONSENTED TO A NEGLECT FINDING AND THE CHILD WAS PLACED IN KINSHIP FOSTER CARE, MOTHER SHOULD NOT HAVE BEEN AWARDED UNSUPERVISED VISITATION WITHOUT A HEARING 2ND DEPT)

NO PRESUMPTION THE BEST INTERESTS OF A CHILD ARE SERVED BY PLACEMENT WITH A FAMILY MEMBER, FAMILY COURT REVERSED (2ND DEPT).

The Second Department, reversing Family Court, determined that it was not in the best interests of the children to be removed from foster care and placed with family members:

“When considering guardianship appointments, the child’s best interests are paramount” … . Once parental rights have been terminated, there is no presumption favoring the child’s biological family over the proposed adoptive parents selected by an authorized agency … .

Here, the Family Court’s determination that it was in the children’s best interests to grant the respective petitions for guardianship, rather than keeping the children with their foster parents for the purpose of adoption, lacks the requisite sound and substantial basis in the record … . The children Hailey and Kailyn have resided in the same foster home since June 2015, and the children Danielle and Belicia have resided in the same foster home since November 2015, where they have bonded with their foster parents and are happy, healthy, and well provided for … . There is no presumption that the children’s best interests will be better served by returning them to a family member, and it would not be in the children’s best interests to do so here … . Matter of Rebecca B. v Michael B., 2017 NY Slip Op 05720, 2nd Dept 7-19-17

FAMILY LAW (ADOPTION, GUARDIANSHIP, NO PRESUMPTION THE BEST INTERESTS OF A CHILD ARE SERVED BY PLACEMENT WITH A FAMILY MEMBER, FAMILY COURT REVERSED (2ND DEPT))/ADOPTION (GUARDIANSHIP, NO PRESUMPTION THE BEST INTERESTS OF A CHILD ARE SERVED BY PLACEMENT WITH A FAMILY MEMBER, FAMILY COURT REVERSED (2ND DEPT))/GUARDIANSHIP (ADOPTION, NO PRESUMPTION THE BEST INTERESTS OF A CHILD ARE SERVED BY PLACEMENT WITH A FAMILY MEMBER, FAMILY COURT REVERSED (2ND DEPT)

,

FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL 2ND DEPT.

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the trial judge should have given the jury the accomplice-in-fact instruction concerning the need for corroboration of the testimony of an accomplice:

“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22[1]). A witness in a criminal action is an accomplice if he or she “may reasonably be considered to have participated in . . . the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged”… . A witness who is a criminal facilitator is an accomplice for corroboration purposes … . The factual issue of whether a particular witness is an accomplice should be submitted to the jury if different inferences may reasonably be drawn from the proof regarding complicity … .

Here, different inferences may reasonably be drawn … as to whether the second eyewitness drove Gill and the shooter to the scene, with the knowledge that one or the other of them intended to use the gun. Under these circumstances, the Supreme Court erred in failing to provide the jury with an accomplice-in-fact charge. The error was not harmless, because the evidence of the defendant’s guilt was not overwhelming. It is possible that the jury, properly charged on whether to treat the second eyewitness as an accomplice, and, if so, how to consider his testimony, could have discounted his version of the events. In that case, it was for the jury to decide whether the remaining evidence established the defendant’s guilt beyond a reasonable doubt … . People v Riley, 2017 NY Slip Op 05755, 2nd Dept 7-19-17

CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)/EVIDENCE (CRIMINAL LAW, ACCOMPLICE TESTIMONY, FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)/JURY INSTRUCTIONS (CRIMINAL LAW, ACCOMPLICE TESTIMONY, FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)

​

JUDGE SHOULD NOT HAVE VACATED DEFENDANT’S GUILTY PLEA OVER DEFENDANT’S OBJECTION 2ND DEPT.

The Second Department, reversing Supreme Court, determined the sentencing judge should not have vacated defendant’s guilty plea. Under the plea bargain defendant was promised an 18-year sentence. After trial he was sentenced to 50 years. Although defendant indicated he didn’t remember the underlying events because he was intoxicated, both he and his attorney objected when the judge vacated the plea:

“[I]n the absence of fraud, misrepresentation, deceit, or trickery, courts have no inherent power to set aside a plea of guilty absent the defendant’s consent other than to correct their own mistakes” … . Moreover, a court may not vacate a plea over a defendant’s objection … .

Here, the People fail to identify, nor is there apparent, any error or mistake made by the Supreme Court in accepting the defendant’s plea. Nor is there any evidence of fraud, misrepresentation, deceit, or trickery presented on this record … .. The defendant’s statements to the probation department to the effect that he was intoxicated and did not remember what had occurred on the night of the shootings cannot be said to constitute consent on the part of the defendant to the vacatur of his plea of guilty and the reinstatement of his plea of not guilty … . Further, notwithstanding the court’s conclusion and the People’s assertion to the contrary, in response to the court’s questioning as to whether the defendant wished to proceed to trial and assert an intoxication defense, the defendant merely indicated that he had wished to do so in the past, not that he wished to withdraw the plea and go to trial now. Nor did the defendant unequivocally inform the court that he had been coerced into pleading guilty … . Instead, the record shows that, when the court stated that it would strike the plea and set the matter down for trial, the defendant and his attorney immediately protested, but the court overruled their objections and moved on. The court erred in vacating the plea over the defendant’s objections … . People v Brown, 2017 NY Slip Op 05748, 2nd Dept 7-19-17

CRIMINAL LAW (JUDGE SHOULD NOT HAVE VACATED DEFENDANT’S GUILTY PLEA OVER DEFENDANT’S OBJECTION)/GUILTY PLEA, VACATION OF (JUDGE SHOULD NOT HAVE VACATED DEFENDANT’S GUILTY PLEA OVER DEFENDANT’S OBJECTION)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy