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Throw Enough Mud at the Wall, Some Will Stick (NY)

July 24, 2018

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In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2018/07/PDF-Singletary-v.-Alhalal-Rest.-Inc..pdf">PDF Singletary v. Alhalal Rest., Inc.</a>,</em> 2018 WL 3371313, at *1 (2<sup>nd</sup> Dept. 2018), the plaintiff appealed an order of the Supreme Court, Kings County, that granted the defendants’ motion for summary judgment.
Plaintiff alleges that on March 17, 2015, while walking on a sidewalk adjacent to the defendants’ premises in Brooklyn (hereinafter the premises), a “hanging awning, its steel supports and mounting infrastructure suddenly and unexpectedly fell" and injured the plaintiff.  The defendants moved for summary judgment, contending that the plaintiff was not struck by the awning. The defendants produced what they claim is photographic evidence of the plaintiff arriving at the premises after the awning fell, and alleged that the plaintiff falsely claimed that she had been struck by the awning. The plaintiff opposed the motion, submitting her own affidavit, photographic evidence of her and ambulance and hospital records.
The Second Department reversed and reinstated the complaint, reasoning that the photographic evidence submitted by the defendants did not establish that the plaintiff fabricated her claims. Summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.” See <em>Ruggiero v DePalo</em>, 153 AD3d 870, 872. Furthermore<strong>, </strong>the Supreme Court should not have granted summary judgment on an issue not raised by the defendants’ motion. The plaintiff had no opportunity to address the issue of whether the defendants had notice of the defective condition that allegedly caused the accident. The plaintiff’s “lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process. ” <em>See Rosenblatt v St. George Health &amp; Racquetball Assoc., LLC</em>, 119 AD3d 45, 54.. Apart from considerations of simple fairness, allowing a summary judgment motion by a defendant to bring up for review every possible defense that could be asserted by that defendant would be tantamount to shifting the well-accepted burden of proof on summary judgment motions.   Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.
It is not uncommon for a judge to make a ruling based on his or her own interpretation of the law and facts as they were presented. However, the judge must make their ruling pursuant to the law and arguments presented in the motion papers. Therefore, when moving for summary judgment, it is imperative to make every argument possible as the judge is unable to fill in the gaps for you.    Some of the issues argued at the appellate level were not preserved for appeal.
So here, the defendants are left with a strong liability defense at trial, but are also left with litigation costs, expert costs, and the the risk of a potentially compelling plaintiff to a jury.  Thanks to Jonathan Avolio for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.
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