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MSJ Denied, Largely Due to (Missing) Easement Exhibit (NY)

June 1, 2017

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A key factor in determining whether a party is liable in a trip and fall accident is the ownership, occupancy, control or special use of the subject property. Generally, the testimony of someone with personal knowledge  that the property is not under their control or used for any special purpose is sufficient to support a motion for summary judgment on a defendants’ behalf.
In <em><a href="">Turano v. Two Hillside Avenue Realty Corp.</a>, </em>2017 NY Slip Op 04313 (2d Dept. 2017), plaintiff tripped and fell in the parking lot of a commercial building.  The building is comprised of eight apartments which are individually owned. Each owner also owns the parking spot nearest to their respective unit. Plaintiff commenced the action against all eight unit owners and the overall property owner who maintains the common areas of the premises.
One of the defendant unit owners moved for summary judgment stating that they did not have a duty to plaintiff due to the fact that the incident occurred on the common portions of the parking lot wherein they do not have a duty to maintain. The Court upheld the lower court’s decision which denied the property owners motion.
The Court held that despite the testimony and affidavit of the homeowner the deed referred to a “Declaration of Common Driveway Easement and Restrictive Covenant.” The Court held that without any information or testimony about the easement and covenant a question of fact remained as to whether the property owner made special use, through an easement or covenant of the portion of the property at issue.
This decision emphasizes how each potential factor for liability on the part of a defendant should be addressed in making a dispositive motion and that any stone left unturned could result in a denial of a motion, despite how strong the other evidence may be.  One assumes the defendant will opt to re-move, with the easement as an additional exhibit -- unless the Court denies leave to re-move.  Thanks to Dana Purcaro for her contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.


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