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Second Department Finds that Defendant Fails to Meet Its Burden in Slip and Fall Case

August 16, 2017 • Posted By Bolam Kim • Insurance Coverage

Shari Scott v. North Bellmore Public School District a/k/a Board of Education of Union Free School District No. 4, Index No. 605609/2014, Decided on August 2, 2017

The Appellate Division, Second Department recently affirmed the lower court’s ruling which denied the defendant’s motion for summary judgment.

In this action for personal injuries, the Plaintiff alleged that she slipped and fell on ice in the parking lot owned and operated by the Defendant.  At the Plaintiff’s deposition and her 50-h hearing, she testified that there was no evidence of salt or sand in the parking lot when she fell on the sheet of ice.  In support of its motion for summary judgment, however, the Defendant provided an affidavit from a representative of the school district stating that the school district did salt and sand the parking lot at approximately 6:00 a.m. on the morning of the accident.

The Appellate Division, Second Department held that, “Since the plaintiff testified that there was no evidence of any salt or sand in the parking lot when she fell, the School District failed to eliminate triable issues of fact as to whether it created or exacerbated a hazardous condition in the parking lot or whether it lacked constructive notice of the condition.”  As such, the Defendant failed to meet its prima facie entitlement to judgment as a matter of law because triable issues of fact still existed.

Therefore, the Appellate Division, Second Department ruled that the lower court properly denied the Defendant’s motion for summary judgment.