Second Department – Page 475 – New York Appellate Digest

EVIDENCE OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF LIQUID ON THE FLOOR, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED.

The Second Department noted that evidence of general cleaning practices was not sufficient to demonstrate a lack of constructive notice of the presence of liquid on the floor (the cause of plaintiff’s fall):

A defendant has constructive notice of a dangerous condition when the condition is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected… . Here, viewing the evidence in the light most favorable to the plaintiff, the defendant failed to demonstrate, prima facie, that it lacked constructive notice of the alleged dangerous condition. Contrary to the defendant’s contention, the deposition testimony of the cafeteria supervisor, which only referred to general cleaning practices and did not establish when, prior to the subject accident, the area was last cleaned or inspected, failed to demonstrate that the alleged condition existed for an insufficient amount of time for it to have been remedied … . Valdes v Pepsi-Cola Bottling Co. of N.Y., Inc., 2017 NY Slip Op 03794, 2nd Dept 5-10-17

NEGLIGENCE (SLIP AND FALL, CONSTRUCTIVE NOTICE, EVIDENCE OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF LIQUID ON THE FLOOR, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED)/SLIP AND FALL (CONSTRUCTIVE NOTICE, EVIDENCE OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF LIQUID ON THE FLOOR, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED)/CONSTRUCTIVE NOTICE (SLIP AND FALL, EVIDENCE OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF LIQUID ON THE FLOOR, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED)

May 10, 2017

Negligence

DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF OR CREATE THE ICY CONDITION, THEIR SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS.

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Defendants’ failed to demonstrate they did not have actual or constructive notice of or create the icy condition:

… [T]he defendants failed to establish, prima facie, that they did not create the alleged hazardous condition or have actual or constructive notice of it. The plaintiff testified at her deposition that six or more inches of snow fell the day before the accident, and that the area of the gas station where she fell looked as if it had been plowed. The defendants provided only general information about their snow and ice removal practices, and no evidence was submitted, inter alia, as to when it last snowed prior to the time of the accident, what they actually did to remove snow and ice from the premises prior to the accident, when they last inspected the accident site prior to the accident, or what the accident site looked like within a reasonable time prior to the accident. Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them, regardless of the sufficiency of the plaintiff’s opposition papers … . D’Esposito v Manetto Hill Auto Serv., Inc., 2017 NY Slip Op 03729, 2nd Dept 5-10-17

NEGLIGENCE (DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF OR CREATE THE ICY CONDITION, THEIR SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)/SLIP AND FALL (DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF OR CREATE THE ICY CONDITION, THEIR SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)

May 10, 2017

Negligence

PLAINTIFF DID NOT KNOW WHAT CAUSED HER FALL, CODE VIOLATIONS NOT CONNECTED TO THE FALL, DEFENSE SUMMARY JUDGMENT PROPERLY GRANTED.

The Second Department determined defendant’s motion for summary judgment in this slip and fall case was properly granted because plaintiff could not describe the cause of the fall. The expert affidavit citing code violations did not connect the violations to the fall:

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, among other things, the plaintiff’s deposition testimony, which demonstrated that she could not identify the cause of her fall … . In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff submitted an expert affidavit from an engineer who asserted that the stairs violated several provisions of the “New York State Building Construction Code,” the plaintiff presented no evidence connecting these alleged violations to her fall. Thus, even assuming that an applicable code provision was violated, it would be speculative to assume that any such violation was a proximate cause of the accident … . Amster v Kromer, 2017 NY Slip Op 03720, 2nd Dept 5-10-17

NEGLIGENCE (PLAINTIFF DID NOT KNOW WHAT CAUSED HER FALL, CODE VIOLATIONS NOT CONNECTED TO THE FALL, DEFENSE SUMMARY JUDGMENT PROPERLY GRANTED)/SLIP AND FALL (PLAINTIFF DID NOT KNOW WHAT CAUSED HER FALL, CODE VIOLATIONS NOT CONNECTED TO THE FALL, DEFENSE SUMMARY JUDGMENT PROPERLY GRANTED)

May 10, 2017

Municipal Law, Negligence

MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED.

The Second Department determined plaintiff’s motion for leave to amend the notice of claim was properly granted in this bicycle accident case. The notice of claim stated plaintiff was “lawfully traveling” on a service road when injured by a defect in the road. The amendment sought to indicate plaintiff was riding a bicycle at the time he was injured:

A court may, in its discretion, grant an application for leave to serve an amended notice of claim if the mistake, omission, irregularity, or defect in the original notice was made in good faith, and the municipality has not been prejudiced … . In making a determination as to whether the municipality has been prejudiced, the court may consider the evidence adduced at a hearing conducted pursuant to General Municipal Law § 50-h, as well as any other evidence that is properly before the court … .

Here, the record does not show any bad faith on the part of the plaintiff, and the County failed to show that it would be prejudiced by the amendment. In particular, the County does not allege that the condition of the roadway changed prior to the service of the summons and complaint, which alleged that the plaintiff was injured while bicycling. Moreover, the record shows that Nassau County Police Department EMS personnel responded to the scene of the accident, and EMS personnel prepared a written report indicating that the plaintiff fell from a bicycle. Fast v County of Nassau, 2017 NY Slip Op 03734, 2nd Dept 5-10-17

MUNICIPAL LAW (MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)/NEGLIGENCE (MUNICIPAL LAW, MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)/NOTICE OF CLAIM (MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)

May 10, 2017

Labor Law-Construction Law

HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION PROPERLY DENIED, HOMEOWNER DID NOT DEMONSTRATE HE DID NOT CONTROL AND SUPERVISE PLAINTIFF’S WORK OR DID NOT CREATE OR WAS NOT AWARE OF THE DANGEROUS CONDITION.

The Second Department determined defendant homeowner’s motion for summary judgment on the Labor Law 240(1), 241(6) and 200 causes of action were properly denied. Defendant did not demonstrate he did not control and supervise plaintiff’s work and he did not demonstrate he did not create or was not aware of the dangerous condition. Therefore the motion was properly denied without reference to plaintiff’s opposing papers:

“Labor Law §§ 240 and 241 provide an exemption for owners of single and two-family houses such that liability can only be imposed where the homeowner directs or controls the work being performed” … . “In this regard, the phrase direct or control’ is to be strictly construed and, in ascertaining whether a particular homeowner’s actions amount to direction or control of a project, the relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured employee” … . Here, the proof submitted in support of the defendant’s motion for summary judgment raises triable issues of fact as to whether he exercised the requisite degree of direction and control over the injury-[*2]producing method of work so as to impose liability under Labor Law §§ 240(1) and 241(6) … . * * *

“[W]hen a worker at a job site is injured as a result of a dangerous or defective premises condition, a property owner’s liability under Labor Law § 200 and for common-law negligence rests upon whether there is evidence that the property owner created the condition, or had actual or constructive notice of it and a reasonable amount of time within which to correct the condition” … . “[W]hen a worker at a job site is injured as a result of dangerous or defective equipment used in the performance of work duties, the property owner’s liability under Labor Law § 200 and for common-law negligence rests upon whether the property owner had the authority to supervise or control the means and methods of the work”… . Where, as here, “an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards” … . Wadlowski v Cohen, 2017 NY Slip Op 03797, 2nd Dept 5-10-17

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION PROPERLY DENIED, HOMEOWNER DID NOT DEMONSTRATE HE DID NOT CONTROL AND SUPERVISE PLAINTIFF’S WORK OR DID NOT CREATE OR WAS NOT AWARE OF THE DANGEROUS CONDITION)

May 10, 2017

Labor Law-Construction Law

DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL WAS NOT DESIGNED TO PROTECT AGAINST FALLS AND THEREFORE WAS NOT ACTIONABLE UNDER LABOR LAW 240 (1), PLAINTIFF NOT ENGAGED IN CONSTRUCTION, DEMOLITION OR EXCAVATION, THEREFORE LABOR LAW 241 (6) NOT APPLICABLE.

The Second Department determined plaintiff’s Labor Law 240 (1) cause of action was properly dismissed because, although he fell when getting out of an aerial bucket, the bucket was not extended and his injury was not related to the failure of a safety device designed to prevent falls. Plaintiff alleged he fell from the bucket because his foot got caught in an electrical device inside the bucket from which the cover was missing. In addition, the Labor Law 241 (6) cause of action was properly dismissed because plaintiff was not involved in construction, demolition or excavation at the time of the injury (he was hired to place an antenna on a utility pole):

… [T]he bucket truck from which the injured plaintiff fell was not defective or inadequate insofar as it related to providing him with fall protection … . Although the dielectric liner was missing from the bucket, the injured plaintiff’s own deposition testimony was that this device was designed to protect workers from electrical shocks, and not falls. Therefore, its absence did not constitute a failure to protect pursuant to Labor Law § 240(1) … . …

Further, the … defendants established, prima facie, that the work the injured plaintiff was performing at the time of the accident did not involve construction, demolition, or excavation and, accordingly, that Labor Law § 241(6) does not apply … . Robinson v National Grid Energy Mgt., LLC, 2017 NY Slip Op 03787, 2nd Dept 5-10-17

LABOR LAW-CONSTRUCTION LAW (DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL WAS NOT DESIGNED TO PROTECT AGAINST FALLS AND THEREFORE WAS NOT ACTIONABLE UNDER LABOR LAW 240 (1), PLAINTIFF NOT ENGAGED IN CONSTRUCTION, DEMOLITION OR EXCAVATION, THEREFORE LABOR LAW 241 (6) NOT APPLICABLE)

May 10, 2017

Foreclosure

REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 90-DAY NOTICE REQUIREMENT FOR FORECLOSURE PROCEEDINGS NOT MET, PROOF OF MAILING INSUFFICIENT.

The Second Department, reversing Supreme Court, determined the 90 notice requirement of Real Property Actions and Proceedings Law (RPAPL) for foreclosure proceedings was not met:

Here, contrary to the Supreme Court’s determination, the plaintiff failed to establish, prima facie, that it complied with RPAPL 1304. The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office demonstrating that it properly served the appellant pursuant to the terms of the statute … . Contrary to the plaintiff’s contention, the affidavit of a vice president for loan documentation of the loan servicer, which referenced purported tracking numbers stamped on the notice, was insufficient to establish that the notice was sent to the appellant in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing … . Citibank, N.A. v Wood, 2017 NY Slip Op 03727, 2nd Dept 5-10-17

FORECLOSURE (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 90 NOTICE REQUIREMENT FOR FORECLOSURE PROCEEDINGS NOT MET, PROOF OF MAILING INSUFFICIENT)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, NOTICE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 90 NOTICE REQUIREMENT FOR FORECLOSURE PROCEEDINGS NOT MET, PROOF OF MAILING INSUFFICIENT)

May 10, 2017

Criminal Law, Family Law

ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT CHILD NEGLECT PROCEEDING ORDER OF PROTECTION ISSUED BY THE SAME COURT.

The Second Department determined father could not move to modify an order of protection issued by the Integrated Domestic Violence (IDV) court in connection with a criminal conviction. The order of protection could be appealed as part of an appeal of the conviction, but the Criminal Procedure Law does not provide for modification of the order. In addition, an order of protection issued by the same court in related child neglect proceedings could not change the terms of the “criminal” order of protection unless that order indicated is was subject to subsequent orders of protection (which was not the case here):

“[W]here a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court”… . The criminal court has authority to determine whether its order of protection is “subject to” subsequent orders pertaining to custody and visitation, and can decline to amend an order of protection to so provide … . Here, the order of protection … that was entered in the criminal action did not state that it was “subject to” subsequent orders pertaining to custody and visitation. Matter of Utter v Usher, 2017 NY Slip Op 03760, 2nd Dept 5-10-17

FAMILY LAW (ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)/CRIMINAL LAW (ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)/ORDERS OF PROTECTION (INTEGRATED DOMESTIC VIOLENCE COURT, ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)/INTEGRATED DOMESTIC VIOLENCE COURT (ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)

May 10, 2017

Education-School Law, Negligence

NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF.

The Second Department determined the negligent supervision action against the school district, stemming from an assault by a student against the infant plaintiff (another student), properly survived summary judgment. The Second Department noted that the school, as opposed to the school district, is not an entity which can be sued. The decision includes a concise but complete explanation of the relevant law. Here the district was aware the infant plaintiff had been harassed by the student before and the student punched the infant plaintiff while a teacher was present in a classroom. The punch was immediately preceded by a couple of minutes of harassment of the infant plaintiff by the assailant:

… [T]he School District has not shown, prima facie, that the incident “involved the type of unforeseeable, spontaneous acts of violence for which school districts cannot be held liable” … , or that the teacher had no time to prevent the infant plaintiff’s injuries and, therefore, the alleged negligent supervision was not a proximate cause of the infant plaintiff’s injuries … . Moreover, the School District did not demonstrate, prima facie, that the infant plaintiff voluntarily entered into a fight with the classmate; rather, the infant plaintiff’s testimony demonstrated the existence of triable issues of fact as to whether he acted in self-defense … . Because the School District did not meet its prima facie burden, we do not consider the sufficiency of the plaintiffs’ opposition papers … . Guerriero v Sewanhaka Cent. High Sch. Dist., 2017 NY Slip Op 03736, 2nd Dept 5-10-17

EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF)/NEGLIGENCE (SCHOOL DISTRICT, NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF)/ASSAULT (STUDENT ON STUDENT, NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF)

May 10, 2017

Attorneys, Criminal Law, Vehicle and Traffic Law

DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL.

The Second Department determined the Department of Motor Vehicles’ finding that petitioner (driver) refused to submit to the chemical (blood alcohol) test after a vehicle stop must be annulled. Although the driver was warned that a refusal required the revocation of his license, he was not told that waiting for a return call from his attorney had been deemed a refusal by the arresting officer:

A motorist under arrest based on an alleged violation of Vehicle and Traffic Law § 1192 may not condition his or her consent to a chemical test on first being permitted to consult with counsel … . Nonetheless, the consequences of refusing to accede to a chemical test may be imposed only if the motorist, after being adequately warned of those consequences, has refused to accede to the test (see Vehicle and Traffic Law § 1194[2][b], [f]). The adequacy of the warning is the same for the consequence imposed by Vehicle and Traffic Law § 1194(2)(b) (suspension and ultimate revocation of the motorist’s driver license) and the consequence imposed by Vehicle and Traffic Law § 1194(2)(f) (admissibility of evidence of refusal at a subsequent criminal trial) … . Here, the undisputed evidence at the hearing held pursuant to Vehicle and Traffic Law § 1194(2)(c) failed to establish that the petitioner was warned that his time for deliberation had expired and his further request to consult with counsel, which the police sought to accommodate, would be deemed a refusal to accede to the chemical test … . We emphasize that our determination is not based on any violation of any purported right to counsel … , but on the adequacy of the warnings that the request to consult with counsel would constitute a refusal to accede to the chemical test … . Matter of Lamb v Egan, 2017 NY Slip Op 03751, 2nd Dept 5-10-17

CRIMINAL LAW (DRIVING WHILE INTOXICATED, CHEMICAL TEST, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/VEHICLE AND TRAFFIC LAW (DRIVING WHILE INTOXICATED, CHEMICAL TEST, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/DRIVING WHILE INTOXICATED (CHEMICAL TEST, REFUSAL, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/CHEMICAL TEST (DRIVING WHILE INTOXICATED, REFUSAL, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)

May 10, 2017

Tag Archive for: Second Department

EVIDENCE OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF LIQUID ON THE FLOOR, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED.

DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF OR CREATE THE ICY CONDITION, THEIR SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS.

PLAINTIFF DID NOT KNOW WHAT CAUSED HER FALL, CODE VIOLATIONS NOT CONNECTED TO THE FALL, DEFENSE SUMMARY JUDGMENT PROPERLY GRANTED.

MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED.

HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION PROPERLY DENIED, HOMEOWNER DID NOT DEMONSTRATE HE DID NOT CONTROL AND SUPERVISE PLAINTIFF’S WORK OR DID NOT CREATE OR WAS NOT AWARE OF THE DANGEROUS CONDITION.

DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL WAS NOT DESIGNED TO PROTECT AGAINST FALLS AND THEREFORE WAS NOT ACTIONABLE UNDER LABOR LAW 240 (1), PLAINTIFF NOT ENGAGED IN CONSTRUCTION, DEMOLITION OR EXCAVATION, THEREFORE LABOR LAW 241 (6) NOT APPLICABLE.

REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 90-DAY NOTICE REQUIREMENT FOR FORECLOSURE PROCEEDINGS NOT MET, PROOF OF MAILING INSUFFICIENT.

ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT CHILD NEGLECT PROCEEDING ORDER OF PROTECTION ISSUED BY THE SAME COURT.

NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF.

DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL.

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