Wednesday, May 18, 2016

A fall down the stairs.

Practice point:  The Appellate Division affirmed the denial of defendants' motion for summary judgment in this action to recover damages after plaintiff allegedly was injured when she fell down a set of bleacher stairs located in a gymnasium owned by defendant. In its moving papers, defendant argued that, according to the opinion of its expert engineer, the accident could not have occurred in the manner which plaintiff claimed that it did.

The Appellate Division found that defendant failed to establish its prima facie entitlement to judgment as a matter of law. Its expert's affidavit was conclusory, speculative, and lacked a proper foundation, as it was based on an inspection that was conducted 14 months after the incident and did not establish that the bleachers were operating in the same manner or were in the same condition on the date of the inspection as they were on the date of the incident.

Student note:  A defendant in a premises liabilty case may demonstrate its prima facie entitlement to judgment as a matter of law with evidence that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition.  Whether a dangerous or defective condition exists is generally a question of fact for the jury.

Case:  Burch v. Village of Hempstead, NY Slip Op 03694 (2d Dep't May 11, 2016)

Here is the decision.

Tomorrow's issue:  Plaintiff's motion for an extension of time to serve.