An April order by the Appellate Division, Second Department upheld a Suffolk County Supreme Court’s finding of summary judgment for the plaintiffs in a Long Island personal injury case. In February of 2007, the plaintiff, a Nassau County police officer, was responding to an alarm at the defendant’s summer house. At the time that the officer was investigating the house, the premises were covered in snow from a recent snowfall because the defendants had not removed the snow themselves, nor had they outsourced the task during the off-season months. The house was unlit, and the plaintiff slipped and fell on the slick top step of the residence.
To prevail in its summary judgment motion, the defendants would have had to show that they neither created the hazardous condition, nor did they have notice of the condition. Obviously the snowfall was not created by the defendants. Furthermore, if they had not been to the house that winter, as it appears from the record that they had not, they would have no actual notice of the condition. It seems logical, however, that the defendants would have had constructive notice of the condition, knowing that they had not hired anyone to clear away any winter snow. The Court ruled that the defense failed to meet it’s prima facie burden for summary judgment, thus their motion was denied.
The Second Department upheld the Suffolk County Supreme Court’s Order granting plaintiff’s cross-motion for summary judgment. The Court found that the plaintiff was able to properly identify a statute or ordinance with which the defendant failed to comply, that plaintiff was injured, and that the defendant’s negligence caused this injury. Having established this prima facie case as a right to summary judgment, the burden shifted to the defense to raise a triable issue of fact. The Court ruled that the defense did not raise such an issue. Because of these factors, the Suffolk County Supreme Court’s finding of summary judgment for the plaintiff was upheld by the Appellate Division.
Patrick Byrne et al., Respondents, v. Thomas Nicosia et al., Appellants.
