Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/08/Robinson-v.-Hess-Retail-Stores-LLC.pdf">Robinson v. Hess Retail Stores, LLC ,</a><a href="https://www.wcmlaw.com/wp-content/uploads/2021/08/Robinson-v-Hess-Retail-Stores-LLC.pdf"></a></em>the Appellate Division, Second Department addressed the Supreme Court’s denial of plaintiff’s summary judgment motion on the issue of liability.</p>
<p style="text-align: justify;">Plaintiff alleged personal injuries when she tripped over a hole on the sidewalk abutting defendants’ premises. Plaintiff eventually moved for summary judgment contending the defendants were negligent in failing to maintain the sidewalk at issue.</p>
<p style="text-align: justify;">The court stated, “Administrative Code of the City of New York §7-210(a) "imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition, and provides that said owners are liable for personal injury that is proximately caused by such failure". "However, Administrative Code of the City of New York §7-210 does not impose strict liability upon the property owner, and the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable". Thus, to prevail on a motion for summary judgment, a plaintiff must demonstrate, prima facie, that the property owner created the defect or had actual or constructive notice of the defect.</p>
<p style="text-align: justify;">The court mentioned that plaintiff’s expert 1) never visited the accident site and 2) relied on goggle images which were in poor quality, and as such, the images were insufficient to establish constructive notice. Therefore, the Appellate Division held that the Supreme Court properly denied plaintiff’s motion seeking summary judgment on the issue of liability.</p>
<p style="text-align: justify;">This decision serves as a reminder to closely evaluate an experts report and see exactly they relied upon when making their opinion.</p>
<p style="text-align: justify;">Thanks to Corey Morgenstern for his contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.</p>