On November 22, 2011, the New York State Appellate Division, Second Department reversed an order for summary judgment granted to joint defendants. The Trial Court had ruled in favor of the defendants finding that no issues of fact existed requiring a trial of the matter. The case involves injuries suffered by a minor child as a result of slip and fall accident outside the property. The girl slipped and fell on ice on the sidewalk outside of the property, which is leased to CVS. Although the defendant property owner had outsourced clean-up of the sidewalk to a 3rd party, the Appellate Court ruled that property owners owe a non-delegable duty to the public to maintain a reasonably safe premises. The Court concluded that the property owner “failed to eliminate all triable issues of fact as to whether the snow removal efforts of the company it hired for that purpose did not cause, create, or exacerbate the icy condition that resulted in the subject accident.”
With respect to CVS, the Court stated that CVS failed to establish that it owed no duty to the plaintiff. Citing a common law duty to repair defective conditions, the Court reversed summary judgment in favor of CVS, asserting that it failed to establish that it did not have actual or constructive knowledge of the condition. Because CVS failed to meet this initial burden, the court ruled that summary judgment should have been denied as a matter of law.