Tuesday, September 30, 2014

Issues of fact as to constructive notice.

Practice point:  The Appellate Division reversed the motion court's granting of defendants' summary judgment motion in this personal injury action, finding triable issues of fact as to whether defendants had constructive notice of the defective condition of the window which allegedly fell on plaintiff's hands. Defendants were aware of problems with the building's windows staying in an upright position, based on the replacement of balances on a number of plaintiff's own windows, including the window in question, and on many others throughout the building.

Student note:  The Appellate Division expressly rejected defendants' argument that they were not required to conduct periodic tests of the window balances. Once they knew that an appreciable number of the windows in the building required attention, they had an obligation to inspect all of them.

Case:  Hermina v. 2050 Valentine Ave., LLC, NY Slip Op 06367 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: CPLR 3012(b)