Practice point: Plaintiff alleged that she was injured when she slipped and fell on a
wet foliage condition located on defendant's grounds. Defendant made a
prima facie showing of entitlement to summary judgment as to this open
and obvious condition, which was not inherently dangerous. Defendant's meteorologist stated that the
wind was sufficient to create the foliage condition and that light
rain, two hours earlier, accounted for the wetness of the leaves.
Moreover, defendant's grounds' supervisor stated
that the grounds crew took reasonable efforts to remove fallen foliage
from the development's extensive property, by patrolling the grounds
daily. Under the circumstances, defendant established that it met its
duty to maintain its property in a reasonably safe condition.
Student note: Plaintiff's theory of liability that the slippery condition was caused by insufficient
drainage for the sprinkler system was raised for the first time in opposition
to the motion. The theory was precluded since it was not set
forth in the notice of claim.
Case: Verdejo v. New York City Hous. Auth., NY Slip Op 02323 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Discovery and striking a pleading.
