Practice point: In this action for injuries allegedly sustained in plaintiff's sidewalk fall, the Appellate Division reversed the motion court's granting summary judgment to the City, and reinstated the complaint. Plaintiff testified
at deposition that the area where she fell was "dirty" with "snow
layers on top of layers," which she later clarified to mean "slushy ice"
that was "clean, like slippery, flat" and had a little snow on top of
it. In opposition to the City's motion, plaintiff
submitted an affidavit in which she explained that she fell on a patch
of snow and ice that was about two feet wide by three feet long, and
that the patch of snow and ice was "one (1) inch thick, flat, hard, and
dirty, as if it had existed for several days."
The Appellate Division determined that this deposition testimony
and affidavit, taken together, cannot reasonably be construed as being
inconsistent or feigned. Inconsistencies, if any, as to how plaintiff described
the patch of snow and ice on which she slipped simply create a triable
issue of fact. In addition, the Appellate Division cited precedent for the proposition that, contrary to the City's
argument, snow and ice left on a sidewalk after a storm can
constitute an "unusual and dangerous condition."
Student note: Once there is a period of inactivity after the storm ceases, it is a question of fact as to whether any delay in commencing the
cleanup was reasonable. Here, it is for the jury to decide
whether the ice on which plaintiff slipped was formed four days before
the accident, as plaintiff contends, and whether
that four-day gap was a sufficient period of time for the City to
remedy the condition.
Case: Rodriguez v. Woods, NY Slip Op 06887 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Dismissal of a conversion claim.
