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NYC Slip and Fall the issue of whether a Dangerous or Defective Condition goes to a Jury: Summary Ju

Injured, Call the Law Offices of Cory H. Morris

In this New York City Personal Injury case, the YMCA is being sued and moves for summary judgment (there being no fact in issue, YMCA believes it is entitled to a judgment in its favor as a matter of law). The Plaintiff (injured party) says that she tripped on an elevated piece of sidewalk that was maintained by the YMCA: "This is a personal injury action whereby on November 26, 2012, plaintiff, Maria Medina allegedly tripped and fell while he was walking on the sidewalk in front of defendants' premises due to the negligence of defendants. Plaintiff further alleges that she fell as a result of a raised section of sidewalk and the remains of a tree which had fallen following Super Storm Sandy." Pp. 1. As many New Yorkers know, Super Storm Sandy left a rash of destruction and many property owners were either unable to fix their property or maintain the property in a safe matter whether it was a commercial property or simply someone's home.

Accordingly, "[f]or defendants to be liable, plaintiff must prove that defendant either created or had actual or constructive notice of a dangerous condition." Pp. 2 (citing Gordon v. American Museum of Natural History, 67 NY2d 836 [1986]; Ligon v. Waldbaum, Inc., 234 AD2d 347 [2d Dept 1996]). "To constitute constructive notice, a defect must be visible and apparent and exist for a sufficient period of time prior to the accident to permit defendant to discover and remedy it." Pp. 2 (citation omitted). Although testimony was adduced showing that there was a violation issued by New York City, the same deponent indicated that it was fixed prior to the Plaintiff's slip and fall and thus prior to when her personal injury action accrued. In opposition to YMCA's motion for summary judgment, Plaintiff produced photographs of the sidewalk's condition, alleging that it was a dangerous or defective condition. An issue of fact exists...

The Motion for Summary Judgment Standard is as follows:

Pursuant to CPLR 3212, a motion for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." In the instant case, the record reveals that the Note of Issue was filed on January 28, 2015, but the Court extended the time to file summary judgment motions until July 28, 2015. It is undisputed that the instant cross motion for summary judgment motion was served, one month late, on August 28, 2015. Any summary judgment motion made later than one hundred twenty days after the filing of the note of issue, requires court approval and a showing of "good cause." In Brill v. City of New York, the Court of Appeals held that: "'good cause' in CPLR 3212(a) requires a showing of good cause for making the delay in the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, non judicial findings, however tardy." 2 NY3d 648 (NY 2004). "[S]tatuory time frames — like court-ordered time frames — are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored." (Micelli v. State Farm Automobile Insurance Company, 3 NY3d 725 [2004][internal citations omitted]; see also, Dettmannv Page, 18 AD3d 422 [2d Dept 2005; First Union Auto Finance, Inc. v. Donat, 16 AD3d 372 [2d Dept 2005]).

Case law is clear on this point: "a property owner may not be held liable in damages for 'trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection'" (Hymanson v. A.L.L. Assoc., 300 AD2d 358 [2d Dept 2002, citing Marinacchio v. LeChambord Rest., 246 AD2d 514 [2d Dept 1998]). Even so, "The Department of Transportation is a department or agency of the City. Cross movant established that actions involving a City department or agency must be brought in the name of the City pursuant to New York City Charter 17 §396. No opposition is presented on this argument." Pp. 3. New York Attorneys who practice New York City Personal Injury Law know the pitfalls of naming a municipal entity. When suing New York City for Personal Injury or a municipal entity of New York City, there are several legal prerequisites, notices, etc., that may, if not complied, bar one from obtaining relief. The Court so holds that "[a]ccordingly, this branch of the cross motion is granted and the case is dismissed as against the Department of Transportation..." Pp. 3. YMCA's motion is denied, however. The Court holds that "the issue of whether a dangerous or defective condition exists on the property of another 'depends on the particular facts and circumstances of each case and is generally a question of fact for the jury' " Pp. 5 (citing Trincere v. County of Suffolk, 90 NY2d 976 [1997]).

Whether in Suffolk County New York or travelling into New York City, should you find yourself or someone you know injured as a result of a dangerous or hazardous condition, call the Law Offices of Cory H. Morris.

The case is Medina v. The City of N.Y., 18228/13, NYLJ 1202752844037, at *1 (Sup., QU, Decided February 29, 2016)

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