Articles Posted in Slip And Falls

The New York Supreme Court, Appellate Division, Second Department in Bergin v Golshani, 2015 NY Slip Op 06103 [130 AD3d 767], denied a defendant’s motion for summary judgment to dismiss a cause of action alleging negligence.

In the slip-and-fall case, the plaintiff sought to recover damages for personal injury for defendant’s failure to inspect the area where plaintiff was injured.  Here, the plaintiff fell on a loose piece of slate on a slate stone landing.  Nassau County Supreme Court denied the defendant’s motion for summary judgment to dismiss the plaintiff’s cause of action alleging negligence.  The defendant’s cross-appealed the court’s decision denying its motion for summary judgment to dismiss the cause of action.  Continue reading

The New York Supreme Court, Appellate Division, Second Department in Schiano v Mijul, Inc.,  2015 NY Slip Op 06910 [131 AD3d 1157], affirmed a trial court order for the imposition of sanctions for the failure to produce necessary documents in an action to recover damages for personal injuries.

The plaintiff was injured when he slipped and fell while walking in the parking lot of defendant’s premises in 2006. The plaintiff claims that he fell “due to the presence of a defective matter in maintaining the path.” The plaintiff also claimed that the defendants were reckless, careless, and negligent in failing to properly fix, repair, and maintain the area, which he walked upon. The plaintiff also argued that the defendants’ failure to maintain the area was a breach of their duty of reasonable owning, operating, and maintaining the area. As a result of the plaintiff’s fall, he claims to have suffered injuries and brought an action to recover damages for his injuries.

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The New York Supreme Court, Appellate Division, Fourth Department upheld a jury verdict that found the City of Dunkirk Housing Authority liable for a slip & fall accident that occurred one icy winter day.

The City of Dunkirk Housing Authority owns a residential facility that is open 24 hours a day. Residents leave and return to the building at all hours. In addition, visitors and healthcare workers can visit the building before 8:00 a.m. and after 4:30 p.m. However, maintenance for the facility only works between 8:00 a.m. and 4:30 p.m. If something happens after 4:30 p.m. that requires maintenance, maintenance will not attend to the situation until the next day after 8:00 a.m.

During the winter, a patch of ice formed on the sidewalk in the early morning. The plaintiff, a visitor to the facility, slipped and fell on the ice patch, sustaining injuries. She brought a personal injury lawsuit against the City of Dunkirk Housing Authority. The case proceeded to trial. At the end of the defense’s case, the defendant moved for a directed verdict under CPLR 4401.

CPLR 4401 states that if the trial judge determines that there is no way that a juror could find for the plaintiff, the judge must direct the verdict in favor of the defendant. The judge is to view the evidence in the light most favorable to the plaintiff.

The defendant argued that the plaintiff had not proved that the defendant had the opportunity to fix the alleged ice patch. The trial judge rejected the argument, and the jury returned a verdict in favor of the plaintiff.

The Fourth Department affirmed this verdict. Under premises liability, a property owner is responsible for maintaining property in a safe condition. If a dangerous condition or defect exists that the property owner is aware of, the property owner is liable for any foreseeable injuries caused by that dangerous condition.

However, with weather emergencies, the property owner is given a reasonable amount of time to fix the dangerous condition. If a blizzard is raging outside, creating ice-covered stairways, a landlord is not required to scrape the ice off in the middle of the storm. The landlord is given a reasonable amount of time following a snow storm to fix the dangerous condition.

In premises liability cases involving weather issues, meteorologists testify about weather patterns and conditions. In this trial, two meteorologists likely testified – one for the plaintiff and one for the defense. Each expert witness possibly testified about (1) what the weather conditions were like that day, (2) whether those weather conditions would have caused the dangerous condition – the ice, (3) when the ice formed and how long it was there prior to the accident, and (4) whether the ice caused the accident.

In this case, the plaintiff fell around 8:00 a.m. The expert testimony showed that the ice had formed some 8-to-12 hours prior to the fall. Because of the maintenance schedule, the ice had been left there over night, untreated despite the large number of individuals entering and exiting the building.

To prove that the defendant had not been given a reasonable amount of time to remedy the ice puddle, the defendant would have to establish “that the ice formed so close in time to the accident that [it] could not reasonably have expected to notice and remedy the condition.” The defendant failed to establish this. As such, the denial of the motion was proper.

The defendant also made a series of other arguments in its appeal. However, because they were not raised at trial during the motion for directed verdict, the Fourth Department refused to consider them. If you wish to make any arguments on appeal, you must preserve them at trial.

If you or a loved one has been the victim of a slip & fall accident, our excellent personal injury attorneys can advise you on how to seek full compensation for your injuries. Contact Gallivan & Gallivan today to discuss your potential claims.

Shelters v. City of Dunkirk Housing Authority, 127 CA 14-00358 (4th Dept. 2015).

The New York Supreme Court, Appellate Division, Fourth Department affirmed a lower court order that punished a defendant restaurant for throwing away a key piece of evidence.

The plaintiff was sitting on the outside patio of the defendant Raspberries Café & Creamery in Oneida County. The tables on the outside patio were shaded by large overhead umbrellas. One umbrella fell and hit the plaintiff’s face and head. The plaintiff sustained injuries. Thereafter, the café threw away the umbrella.

The plaintiff filed a personal injury lawsuit. During the discovery process, the plaintiff requested access to the faulty umbrella. However, the defendant was unable to find the umbrella base and had already disposed of the umbrella. The plaintiff filed a motion seeking sanctions for discovery violations. The trial court granted the order and sanctioned the defendant by (1) precluding any defense evidence of the condition of the umbrella and (2) issuing an adverse inference charge.

If an individual or business reasonably expects that an item may become evidence in a future lawsuit, that item cannot be deleted, destroyed or disposed of during pending litigation. Illegal disposal of evidence is known as spoliation of evidence. Evidence must be preserved through the conclusion of the case to allow both parties to make use of the evidence. Only items that may be material evidence need to be preserved.

Here, the umbrella is material evidence to the case. The entire case hinges on its condition. A property owner such as Raspberries Café owes a duty of care to its patrons to provide a safe restaurant. If a dangerous condition or defect exists that the restaurant is aware of, the restaurant will be liable for any reasonably foreseeable injuries. In this case, the umbrella is the alleged dangerous condition created by the defendant. To prove that the umbrella was defective, the plaintiff will need to examine the umbrella, introduce it into evidence, and make arguments about its condition. Without the umbrella, the plaintiff’s case is hurt. This is known as prejudice.

When spoliation of evidence occurs, a party will file a motion for sanctions. There are a multitude of sanctions available, and judges have complete discretion in deciding sanctions. For relatively minor issues, the judge may decide not to issue a sanction. For serious issues, the judge may dismiss the case. Here, the judge decided to preclude defense testimony on the umbrella’s condition and charge an adverse inference. In deciding a proper sanction, the judge must consider how the spoliation has prejudiced the moving party. Then the judge must tailor a sanction that “achieve[s] a fair result.”

By precluding defense testimony on the condition of the umbrella, the judge took away the defendant’s ability to present any testimony about the condition of the umbrella. For instance, the defendant would not be able to present testimony that the umbrella was brand new, did not have any cracks or rust, and was fully operational on the day of the accident. However, the plaintiff can present testimony on the issue. The defendant will be unable to rebut this testimony with its own evidence.

The jury will be given notice of the adverse inference. An adverse inference instruction allows the jury to conclude that the defendant had intentionally destroyed evidence that was favorable to the plaintiff. This will again work in the plaintiff’s favor to help even the playing field at trial.

If you or a loved one has been injured in an accident, you may have a valid negligence claim. Call Gallivan & Gallivan immediately to discuss your case and review your potential claims.

Manley v. Raspberries Café & Creamery, 306 CA 14-01091 (4th Dept. 2015).

The New York Supreme Court, Appellate Division, Fourth Department reversed an order issued by a trial court judge that granted a group home’s motion to dismiss in a slip & fall case that occurred at a restaurant.

The lawsuit was filed by the plaintiff’s parents on behalf of a disabled adult child. The plaintiff was an adult with disabilities who lived in a group home operated by defendant Oswego County Opportunities. Oswego County Opportunities arranged for the plaintiff, another resident, and some employees to go on an overnight trip. The group ate dinner at the defendant Old Mill Restaurant. After his dinner was served, the plaintiff became upset. He decided to walk outside to the parking lot to cool off. He stood up, walked to a side door in the dining area, walked through the side door, and then proceeded to fall straight down into the parking lot. The side door was elevated off of the ground and had no stairs that connected the doorway to the parking lot below. The plaintiff sustained injuries in his fall and brought a personal injury lawsuit against Oswego County Opportunities and Old Mill Restaurant.

Oswego County Opportunities filed a motion to dismiss the claims against it, as well as a motion seeking reimbursement for photocopying expenses that were incurred as part of responding to the complaint and filing the subsequent motion to dismiss.

In its motion, Oswego argued that it was not responsible for the plaintiff’s fall. The trial court granted the motion and dismissed the claims against Oswego. The plaintiff and Old Mill Restaurant appealed.

A group home has a duty of care it must exercise toward its residents. This duty of care is the duty to safeguard all of its residents. The group home’s ability to safeguard each resident is measured by each resident’s ability to protect himself or herself. When a resident is disabled, the group home takes on more responsibility for caring for and protecting the resident. In determining the reasonable level of care owed to a disabled person, the court will look at the resident’s physical and mental capabilities as they were known by the group home’s caretakers. The group home will only be responsible for reasonably foreseeable injuries.

Therefore, in order to prevail on a motion to dismiss, Oswego would have had to prove that (1) it had adequately supervised the plaintiff and (2) the injury was not reasonably foreseeable. The plaintiff had behavioral problems, and Oswego was aware of these problems. As such, it may have been foreseeable for the plaintiff to act out by storming off. Because there was a possibility that Oswego did not adequately supervise the plaintiff and/or that the injury was foreseeable, summary judgment was not proper. These two issues are for a jury to decide.

In addition, Oswego argued that its alleged negligence did not proximately cause the fall. In order to prevail on this argument, Oswego would have had to show that either the dangerous condition caused by the restaurant was the sole cause or that the accident happened so fast that even proper supervision by Oswego would have been unable to prevent the fall.

Therefore, the Fourth Department reversed the trial court’s order and reinstated the plaintiff’s complaint. The case will proceed to trial pending any future motions to dismiss.

In addition, the defendant’s motion for reimbursement was also denied.

If you or a loved one was the victim of a slip & fall accident, you need to contact a personal injury attorney immediately. Gallivan & Gallivan can listen to your story of what happened, explain any potential claims you might have, discuss your legal options, and help you argue your case in court. Contact Gallivan & Gallivan today to start seeking compensation now.

Smart v. Old Mill Restaurant & Oswego County Opportunities, 260 CA 14-01372 (4th Dept. 2015).

The New York Supreme Court, Appellate Division, Fourth Department affirmed a trial court order that denied the defendants’ motion for summary judgment in a personal injury case involving a dart board at a bar.

Mooney’s Sports Bar & Grill is owned by McCann’s, Inc. Daart Amusement is a company that manufactures and services dart boards for bars and restaurants. Daart installed a dart board at the sports bar. One day, the plaintiff was at Mooney’s, standing near the dart board. A patron playing darts threw a dart at the dart board, which then struck the plaintiff. The plaintiff filed a personal injury lawsuit against McCann’s and Daart.

Both defendants filed a motion for summary judgment, requesting that the complaint be dismissed. In its motion, McCann’s argued that the plaintiff’s claim was barred under the doctrine of assumption of risk. The trial court rejected this argument and denied McCann’s motion for summary judgment. McCann’s also argued that the plaintiff was the sole proximate cause of his injuries, but because McCann’s failed to include an affidavit or affirmation supporting this contention, the court declined to consider the argument.

Daart argued that it did not owe a duty of care to the plaintiff or that if it did, it had not breached this duty. The court also rejected this argument, holding that there was insufficient evidence proffered by Daart to prove this defense.

Regarding assumption of risk, the Court of Appeals has long held that the doctrine is reserved for only certain circumstances. Some activities are inherently dangerous because they carry a high risk of accident. However, these activities also have tremendous social value. These activities include scuba diving, private flying lessons, and wrestling. New York law bars any personal injury claims arising from these activities. To determine if an activity qualifies, it must either be: (1) sponsored or supported by the defendant, (2) an organized recreational or athletic activity, or (3) held in a designated venue.

The game of darts is not a qualified activity. The game of darts is not an organized athletic activity nor is it played in a designated venue like a sports arena. In addition, it is not sponsored or supported by the defendant. While the defendant does provide access to the dart board at its establishment, it does not oversee the game. In addition, darts is not known to be an inherently risky game.

Because darts is not a qualified activity under the doctrine of assumption of risk, the Fourth Department agreed that McCann’s had failed to establish that the plaintiff had assumed the risk. McCann’s may have had a decent argument regarding proximate cause. However, by not including supporting evidence, the Fourth Department also declined to consider this argument.

Regarding Daart’s duty of care: the plaintiff’s complaint is founded upon the doctrine of premises liability. Under the doctrine, property owners are liable for dangerous conditions on their property that create a dangerous condition or defect that they are aware of. The injuries that arise from this dangerous condition must be foreseeable. A property owner is someone who has “occupancy, ownership, control or a special use of [the] premises.” While McCann’s clearly owns the sports bar, there is an issue as to whether Daart qualifies as a property owner for purposes of premises liability. Daart argues that it does not.

When a defendant argues in a motion for summary judgment that it is not a proper party to the lawsuit, it must use sufficient evidence to demonstrate this. Here, Daart failed to establish that it did not owe a duty of care to the plaintiff. In its motion, it must prove this to prevail. Because it failed, denial was proper. However, this does not mean that the plaintiff will be able to prove that Daart owes a duty of care at trial.

If you or a loved one was injured while on someone else’s property, whether a home or business, you may have a valid premises liability claim. Consult with the skilled personal injury attorneys at Gallivan & Gallivan today to review your negligence case.

Weierheiser v. McCann’s, 284 CA 14-01684 (4th Dept. 2015).

The New York Supreme Court, Appellate Division, First Department affirmed a trial court’s order that denied both the defendant’s motion for new trial and the defendant’s motion to reduce judgment interest rate in a personal injury case involving a lawnmower accident.

An employee of the New York City Housing Authority was mowing a lawn using a lawnmower. The plaintiff, a small child, was standing near the yard. When the lawnmower ran over a rock, the machine ingested the rock and then rapidly ejected it at the plaintiff. The rock struck the plaintiff on the left shin. The projectile rock caused serious and permanent damage. The plaintiff suffered from a large, open gash with exposed shin bone, a spiral fracture in his left tibia bone, and permanent damage to the tendons, ligaments, muscles, and nerves in his leg. The plaintiff was immediately hospitalized and remained in the hospital for 3 days where he was outfitted with a cast and necrotic tissue was removed. The plaintiff wore the cast for 6.5 weeks. When the cast was removed, he was left with a permanent scar that ran the length of his shin. Due to permanent muscle and tendon damage, the plaintiff can no longer participate in sports.

As a result of the accident, the plaintiff filed a personal injury lawsuit against the New York City Housing Authority. Even though the New York City Housing Authority itself was not personally responsible for the accident, its employee was, and the employee was acting as an agent of the Housing Authority when he was mowing the lawn. Employers are responsible for the actions of their employees and can be liable when the employees act negligently while on duty and performing their work tasks. This employee was tasked with mowing lawns for properties owned by the Housing Authority. The employee must take care when mowing lawns to ensure he operates the lawn mower safely. Running over a rock is dangerous – it can damage the lawn mower and can cause an accident such as this. Because the employee acted negligently by running over the rock, the Housing Authority was liable for his negligence.

The parties proceeded to trial, and the jury found in favor of the plaintiff. The jury awarded the plaintiff $250,000 for past pain and suffering at 9% interest per annum. Judgments accrue interest until they are paid in full. Many losing defendants do not have the available funds up-front to pay a judgment in full at the close of the case, especially if the verdict is quite large. To assist the plaintiff, who must wait for this payment from the defendant, and to incentivize the defendant to pay earlier, the court will often order interest that accrues annually on the remaining balance of the judgment.

Here, the interest rate was 9%, which is the average for civil cases in New York. However, the Housing Authority moved to reduce the interest rate and instead requested a 3% interest rate. The Court of Appeals has held that 9% is a “presumptively fair and reasonable” interest rate in a personal injury case involving the same defendant. In order to rebut this reasonable interest rate, the defendant must show a valid reason for a lowered interest rate or must show that the interest rate, given the circumstances, is not fair or reasonable. Here, the Housing Authority failed to rebut the presumption. As such, the motion was properly denied.

The Housing Authority also argued that the $250,000 award for past pain and suffering was unreasonable. However, given the circumstances, including the extent of the injury and its effect on the plaintiff’s ability to participate in physical activities, the First Department held that the award did not materially deviate from the realm of reasonable compensation.

If you or a loved one has been injured in an accident, you have legal options. To discuss your right to compensation, call the skilled personal injury lawyers at Gallivan & Gallivan today to schedule a free consultation.

Roy L.N., Jr. v. New York City Housing Authority, 125 AD3d 471 (1st Dept. 2015).

The New York Supreme Court, Appellate Division, Fourth Department affirmed a trial court’s order denying the defendants’ motion for summary judgment in a personal injury case involving horseplay in a pool at a party.

The defendants hosted a party at their house. Around 1:00 a.m., the plaintiff joined some others in the pool. The pool was above-ground and equipped with a long slide. The plaintiff dove head-first down the slide. When she slid into the pool head-first, she hit her head on the bottom of the pool and sustained injuries. The plaintiff filed a personal injury lawsuit, alleging the defendants were responsible for her injuries.

The defendants moved for summary judgment, arguing that the plaintiff’s claims were prevented by the doctrine of assumption of risk. The defendants argued that the plaintiff participated in a risky activity (sliding into a pool head-first) and that the plaintiff was therefore the proximate cause of her accident. As such, the defendants argued that the complaint be dismissed. The plaintiff filed opposition papers, and the trial court judge denied the defendant’s motion for summary judgment. The defendants appealed.

The doctrine of assumption of risk is reserved for inherently risky activities. The potential danger associated with these activities is obvious to all participants. Examples include sky diving, bungee jumping, parasailing, and boxing. A boxer walks into the ring before a match knowing that he is going to sustain injuries, and he accepts injuries as an inevitable part of boxing. With many of these activities, operators will require participants to sign waivers. If the participant refuses to sign the waiver, he or she will not be permitted to do the activity. The waiver usually states that the operator is not responsible for any accidents that occur, the participant is aware of the inherent dangers, and the participant agrees to proceed anyway. If a plaintiff signs a waiver and then sustains an injury during the activity, the plaintiff will generally be barred from suing the operator in a personal injury lawsuit.

The Court of Appeals in New York has further clarified the doctrine of assumption of risk. In New York, personal injury claims are barred when the plaintiff participates in certain athletic and recreational activities. New York recognizes that some recreational activities have social value despite their high risk of injury. These recreational activities are protected under the doctrine of assumption of risk. In New York, the doctrine of assumption of risk only covers activities that occur during a sports game or match, are sponsored or supported by the defendant or are athletic or recreational activities that occur at an assigned venue.

For instance, boxing injuries are barred under the doctrine of assumption of risk in New York because they are part of a sporting event that occurs at a designated venue. Sky diving injuries are also barred because the sky diving activity is sponsored and run by the defendant.

Assumption of risk only bars injuries that are a direct result of the inherent riskiness of the activity. If the defendant acts negligently or intentionally, the defendant can still be liable for injuries suffered by the plaintiff. For example, if a sky diving operator fails to properly affix the harness and the harness containing the parachute falls off mid-flight, the operator can be liable for negligence.

Here, the Fourth Department held that the defendants failed to prove that the swimming activity was part of the doctrine of assumption of risk because it did not fall into one of the three categories outlined by the Court of Appeals. The Fourth Department held that the plaintiff was not injured as part of an organized recreational or athletic activity but rather horseplay in the middle of the night at a party. The Fourth Department therefore upheld the trial court’s denial of the motion for summary judgment, stating that horseplay is not covered by the doctrine of assumption of risk.

This decision, however, does not bar the defendants from arguing comparative negligence. Under comparative negligence, the plaintiff may be wholly or partially responsible for her injuries.

If you or a loved one has been injured in an accident, you may have a right to compensation. The experienced personal injury lawyers at Gallivan & Gallivan will review your case, explain your legal options, and aggressively fight for your right to damages. Contact Gallivan & Gallivan today to schedule a consultation.

Holly M. Redmond v. Denis M. Redmond & Candace G. Redmond, 263 CA 14-01423 (4th Dept. 2015).

The New York Supreme Court, Appellate Division, First Department granted partial summary judgment to the plaintiff in a ladder / elevation case under Labor Law 240.

The plaintiff was an electrician for Atlas-Acon Electric Service who was working on NBC property in New York City. The plaintiff ascended an A-frame ladder in order to replace the ballasts on 25 light fixtures. After completing his job, he began to descend the ladder. At this time, the ladder swayed, and the plaintiff fell, sustaining injuries. The plaintiff filed a personal injury lawsuit for Labor Law 240 violations.

Labor Law 240 (1) is also known as the Scaffold Law. Labor Law 240 covers protections for employees working at elevated heights. It requires employers to provide or erect scaffolding, blocks, irons, ropes, pulleys, and harnesses for employees working at elevated heights. The law was codified in order to protect employees from the increased risk of danger and injury at elevated heights. The law is specifically directed at employees working on construction or renovation sites. When an employer fails to provide or maintain any equipment as required by Labor Law 240, the employer has violated the law. A violation of Labor Law 240 is evidence of negligence if the employee falls or is otherwise injured due to lack of safety equipment.

Routine maintenance work is not covered by Labor Law 240. Thus, while a contractor installing windows on a high rise building is covered by Labor Law 240, a superintendent replacing a smoke detector battery while standing on a ladder is not.

Here, however, the NBC building was undergoing renovations, which the plaintiff’s work was a part of. Therefore, because his replacement of the ballasts constituted a part of the renovation project and not routine maintenance on the facility, his accident was covered by Labor Law 240.

The parties did not dispute how the accident occurred. In addition, no evidence arose in the record that the plaintiff was a proximate cause of the fall. Therefore, the First Department granted partial summary judgment to the plaintiff electrician on the issue of liability.

This means that liability has been established for purposes of the trial. However, the plaintiff will still need to prove damages. Damages can include past and future medical expenses, past and future lost wages, and past and future pain and suffering.

Summary judgment is usually granted in whole, meaning that the entirety of the motion for summary judgment is granted. If it is the defendant’s motion that is granted, the case is dismissed. If it is the plaintiff’s motion that is granted, judgment is entered in favor of the plaintiff.

Here, however, the total amount of damages may be disputed. This will lead to one of two outcomes. After learning that it has been found liable by the appellate court for the accident, NBC may offer a settlement package to the plaintiff. When evaluating the value of a settlement offer, the plaintiff must consider the cost both in terms of time and money if he were to pursue trial in lieu of a settlement.

In a case in which liability is already pre-established, the jury may be more willing to award the plaintiff what he is asking for. If the plaintiff has hospital bills and employment history available, he should be able to prove his damages to the jury. An award can also be made for the plaintiff’s past and future pain and suffering.

If you or a loved one has been injured in a construction accident while on the job, contact the experienced personal injury lawyers at Gallivan & Gallivan to discuss your potential Labor law 240 claim today.

Blanco v. NBC Trust No. 1996A, 122 AD3d 409 (1st Dept., Nov. 6, 2014).

The New York Supreme Court, Appellate Division, Fourth Department affirmed a trial court’s order denying summary judgment to a landlord sued by his renter after a nasty fall down the stairs.

The plaintiff lived in a duplex owned by the defendant landlord. A set of exterior metal stairs at the building led to the front entrance. The metal was corroded, and parts of the handrail that had corroded had been haphazardly welded back together. The plaintiff descended the stairs, gripping the handrail on his way down. A portion of the handrail that had been welded then broke off in the plaintiff’s grasp, causing him to tumble down the stairs. The plaintiff sustained injuries due to the fall.

The plaintiff brought a premises liability lawsuit to recover for personal injury damages. In his complaint, the plaintiff alleged that the landlord was negligent in maintaining the stairs and handrail in a safe condition. The landlord filed a motion for summary judgment, requesting that the complaint be dismissed.

The defendant made three arguments in his motion for summary judgment: (1) the defendant had maintained the duplex “in a reasonably safe condition,” (2) the plaintiff’s expert had improperly relied on photos of the stairs when declaring that the stairs were dangerous, and (3) the defendant was not negligent in allowing the corrosion.

Regarding the first argument, the trial court held that the defendant had established a prima facie case that the duplex was in a reasonably safe condition, and the Fourth Department agreed. However, the plaintiff is permitted an opportunity to respond to a defense motion for summary judgment. When the defendant has failed to establish a prima facie entitlement to summary judgment, the plaintiff’s oppositional arguments are not even necessary. However, here, because the defendant did establish this prima facie entitlement, the court then evaluated the plaintiff’s counterarguments.

The plaintiff submitted an affidavit of an expert witness that stated the witness had inspected the railing and that it was the opinion of that witness that the railing had been corroded for a while. The expert stated that corrosion was dangerous and that it was the corrosion that had caused the fall. This created a genuine dispute of material fact as to whether the corrosion had caused the fall. Thus, it was for a jury to decide at trial, not the judge.

Regarding the second argument, the defendant argued that the photos of the railing that the expert relied on were not authenticated. Photos submitted into evidence must be authenticated in order to be relied on. This means that there needs to be proof of what the photo is of and when it was taken. Here, however, the record established that the photos were of the exact railing. In addition, the record established by way of date stamp on the photos and testimony by multiple witnesses, including the defendant himself, that the photos were taken right after the fall. The witnesses also stated that the photos accurately depicted the railing as it was at the time of the fall. Thus, the defendant failed on this argument.

Regarding the final argument, the defendant argued that he was not required to prevent railings from corroding. On the contrary, though, the Building Code and Property Maintenance Code of New York State both require landlords to coat railings, stairs, and other exterior metal surfaces with a corrosion inhibitor. Landlords are also required by the law to fix any pre-existing corrosion. When a landlord has violated the Building Code, this is evidence of negligence. Thus, the defendant also failed on this argument.

As such, the defendant’s motion for summary judgment was properly denied, and the case will proceed to trial.

If you or a loved one has been injured in an accident either on your rental property or someone else’s property, you may have a premises liability claim. Contact the experienced personal injury attorneys at Gallivan & Gallivan today to discuss your potential claims.

Morreale v. Froelich, 35 CA 14-01219 (4th Dept., Feb. 6, 2015).