Tuesday, February 2, 2016

Premature summary judgment motions.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion even though it was made before defendant produced a witness  for deposition.  Defendant established prima facie that plaintiff's slip and fall on ice was not due to any negligence on its part by submitting a departmental director's affidavit stating that defendant operated a bus route with a stop at the subject location but did not "own, manage, maintain, operate, or control any bus stops."  Plaintiff failed to make a showing that discovery might lead to relevant evidence supporting her claim that defendant owned or was responsible for removing snow and ice from the accident location.

Plaintiff could not argue that defendant breached a common carrier's duty to provide a safe means of ingress, because plaintiff did not plead this theory of liability in her notices of claim.

Case:  Cruz v. City of New York, NY Slip Op 00586 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  CPLR 3408 and negotiating in good faith.