Wednesday, January 22, 2014


This email came in from a fellow attorney and just felt quite appropriate with today's snow blizzard:
'Establishing Constructive Notice of Icy Condition in Personal Injury Actions; Two Recent First Department Decisions
Law Offices of David A. Gabay, PC
January 21, 2014
Dear Jon Michael,
Plaintiffs claiming constructive notice of an icy condition must proffer sufficient evidence for the trier of fact to conclude that the condition was visible and apparent, and that it existed for a sufficient length of time for defendant to have discovered it and taken curative action. The First Department has very recently decided two cases addressing whether the evidence of constructive notice is sufficient to survive a summary judgment motion and to survive a motion for a directed verdict.
In Tompa v. 767 Fifth Partners, LLC, decided on January 16, 2014, the First Department affirmed the Supreme Court's decision granting defendant summary judgment on the issue of liability. Plaintiff slipped and fell on a thin sheet of ice on a plaza in front of defendant's building. Plaintiff conceded the lack of actual notice on appeal, but argued defendant either created the condition itself by running a water fountain in the cold weather or that it had constructive notice of the condition because it was a recurring condition.
The First Department determined that the plaintiff's explanation of how the ice sheet formed was too speculative to survive summary judgment. Plaintiff did not produce any expert evidence as to how the water left the fountain, how it got to the place where the ice sheet was, and what conditions would have been required for the water from the fountain to form the ice sheet. The Appellate Division also found that the plaintiff never established that the fountain was in fact running on the day of the incident.
There is a dissent from Justice Fineman, which is interesting to me because it illuminates just how differently judges can perceive and present the exact same facts or information contained in a brief.

In Harrison v. New York City Transit Authority, decided on January 16, 2014, the First Department reversed and remanded a jury verdict for a new trial on liability because of a defective jury instruction on the issue of constructive notice. Plaintiff slipped and fell on a patch of ice on the yellow safety strip on a subway platform in the Bronx. In its opinion, the Court lays out in detail all of the evidence of constructive notice produced at trial by both sides. The Court's conclusion was that there was sufficient evidence of constructive notice to allow that issue to go to the jury.

But the valuable lesson in the opinion is the detailed list of facts, documents, and evidence used by both parties, which to my mind is a useful road map of how to ensure that a constructive notice claim survives a motion for a directed verdict at the close of the defendant's case.
If you or someone you know would like to talk about a civil appeal in either state or federal court, please call or email me.

Thank you.

David Gabay
Law Offices of David A. Gabay, PC

57 West 57th Street, 4th Floor           
New York, NY 10019                         
Phone: 212-321-0871                       

Cell Phone: 516-318-5542"

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