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Being On Site Two Years Before The Date Of Loss, May Prevent Summary Judgement (NY)

May 5, 2023

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Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property. However, the Second Department in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/05/Lyman-v.-Cablevision-of-Ossining-Ltd.-Partnership-et-al.pdf">Lyman v. Cablevision of Ossining Ltd. Partnership, et al.</a>,</em> 2023 NY Slip Op 02116, (2023), recently held that Cablevision was unable to escape on summary judgment, when they did not own the property and their last visit was two years prior to the date of loss.

In <em>Lyman</em>, plaintiff brought suit to recover personal injuries when he tripped and fell on an exposed cable wire located in a flower bed outside of a condo building, in November of 2016. Defendant Cablevision was the owner of the cable wire which the plaintiff tripped over. Cablevision moved for summary judgment, which the lower court granted, however on appeal it was overturned.

The Second Department stated that although Cablevision did not own, occupy, control or make special use of the property, liability may be imposed upon Cablevision if they created the dangerous or defective condition.

Specifically, the court pointed to the fact that a Cablevision employee or agent went to the subject condominium unit that occurred in 2012 and 2014 – four and two years before the subject incident – and there was no sufficient evidence to show that they did not create the allegedly dangerous condition.

Thanks to Christopher Palmieri for his assistance with this post.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.

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