Practice point: Plaintiff allegedly was injured when he stepped off a retaining wall on the
outdoor premises of defendant's residence. Plaintiff alleges that he could not see the retaining
wall at the time of the accident due to a lack of illumination. Plaintiff's bill of particulars
alleges that defendant was negligent in "caus[ing] a dangerous
condition to arise by switching off the lights on the soffit of the
porch fronting the lawn and on the side of the house and on the post
lamp situated on the lawn." After depositions, defendant moved for summary judgment on the grounds that she did not
create the allegedly dangerous condition by turning off the lights, and
that she did not have actual or constructive notice that the lights had
allegedly been turned off.
In support of the motion for summary judgment, defendant submitted a transcript of her deposition testimony. She testified that
the lights were turned on at the time of the accident, and that
she was the only person who had access to the light switches. In
addition, defendant submitted plaintiff's deposition testimony
that the lights were on when he arrived at the residence, but
that they had been turned off when he fell off the retaining wall as he tried to walk back to his car.
The Appellate Division found a triable issue as to whether defendant turned off the lights, based on plaintiff's testimony that the lights were off at the time of the
accident, combined with defendant's testimony that she was the only
person with access to the light switches. Defendant failed to sustain her burden
of establishing, prima facie, that she did not create the allegedly
dangerous condition by turning off the lights.
Student note: A defendant who moves for summary judgment in a premises liability
case has the initial burden of making a prima facie showing that it
neither created the hazardous condition nor had actual or constructive
notice of its existence for a sufficient length of time to discover and
remedy it.
Case: Guilfoyle v. Parkash, NY Slip Op 09104 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: A plaintiff's motion for summary judgment in a negligence action.
