Wade Clark Mulcahy LLP

<p style="text-align: justify;">When a defendant obtains a summary judgment against a plaintiff, the fight does not end there. While the discretion ultimately remains with the court, a summary judgment may be reversed on appeal if the opposing party submits evidence that raise a triable issue of material fact.</p>
<p style="text-align: justify;">For example, in <a href="https://www.wcmlaw.com/wp-content/uploads/2023/05/Case-3-Abramson-v-Janowskis-Hamburgers-Inc.-2023-NY-Slip-Op-02293.pdf"><em>Abramson v Janowski's Hamburgers Inc.</em></a> 2023 NY Slip Op 02293 (2d Dep’t May 3, 2023), plaintiff allegedly was injured when she tripped and fell over a crack in a sidewalk located across the street from the defendants’ wholesale and retail hamburger products business. The hamburger defendants used their loading dock and driveway across the street from the sidewalk crack that allegedly caused the accident.</p>
<p style="text-align: justify;">Plaintiff subsequently commenced a lawsuit against the defendants alleging the defendants were negligent in that the defective sidewalk condition was caused and created by trucks that drove onto the sidewalk while making deliveries to the defendants’ premises.</p>
<p style="text-align: justify;">Thereafter, the defendants moved to dismiss the complaint as asserted against them. The lower court granted the defendants’ motion and the plaintiff appealed.</p>
<p style="text-align: justify;">Thereafter, the second department reversed the lower court’s decision to grant the defendant’s summary judgment motions. Although as a general proposition, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control or special use of the property, liability can also be imposed upon a party that creates the dangerous or defective condition.</p>
<p style="text-align: justify;">Here, the plaintiff submitted deposition testimony of an individual that resided next door to the defendants’ premises for nearly 56 years. The neighbor testified he lived on that street for many years and witnessed drivers of 18-wheel tractor-trailers make deliveries to the defendants and while doing so, maneuvered into the driveway and frequently drove onto the sidewalk across the street. As such, the neighbor witnessed employees of the burger companies direct the truck drivers onto the sidewalk to use their loading dock.</p>
<p style="text-align: justify;">Accordingly, the neighbor’s testimony was sufficient to raise a triable issue of fact as to whether the actions of the defendants caused or created the hazardous sidewalk condition that allegedly caused the plaintiff’s accident. Therefore, the defendants’ motion for summary judgment was reversed and denied.</p>
Thank you to Lauren Howard for her contribution to this post.  Should you have any questions, please contact <a href="mcare@wcmlaw.com">Matthew Care.</a>

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