Friday, July 25, 2014

A fall on the ice, out of season but actionable.

Practice point:  Defendant failed to establish that it lacked constructive notice of a large layer of ice which allegedly caused the plaintiff to slip and fall in the defendant's parking lot.  At a hearing held pursuant to General Municipal Law § 50-h, and at her deposition, the plaintiff testified that she had seen the ice condition the evening before the accident when she parked her car in the lot. In support of its motion, the defendant failed to establish that ice was not present when it last inspected or cleaned the area. In addition, the defendant failed to eliminate all triable issues of fact as to whether the large layer of ice upon which the plaintiff allegedly slipped was created by the defendant's snow removal efforts in the days prior to the accident.

Student note:  A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of plaintiff's fall.

Case:  Dhu v. New York City Hous. Auth., NY Slip Op 05300 (2d Dept. 2014) 

Here is the decision.

Monday's issue: Return of down-payment on contract for sale of real property.