Nicoletti, Gonson, Spinner, LLP

Second Department Upholds Summary Judgment in Slip and Fall On Ice Case

The Appellate Division, Second Department, recently affirmed the Supreme Court’s Decision to uphold a favorable ruling on a summary judgment motion that Angela A. Lainhart, Esq., of Nicoletti, Gonson Spinner & Owen LLP obtained in connection with a slip and fall accident on ice, entitled Max Gershfeld et al. v. Marine Park Funeral Home, Inc., Index No.: 36467/04, Supreme Court, Kings County.

The matter arose from an alleged incident that occurred on January 19, 2004 in front of a funeral home in Brooklyn, New York. It was alleged that the plaintiff had slipped on an invisible sheet of ice on an exterior rubber mat in front of the premises. Plaintiff alleged that he sustained injuries consisting of a finger fracture, cervical disc herniations and bulging, cervical radiculopathy and an aggravation of a lumbar spine condition. The plaintiff claimed that the injuries necessitated him to undergo a cervical disc fusion surgery and he claimed a need for future fusion surgery of the lumbar spine.

Our firm moved for summary judgment, on the ground that there was no evidence establishing that the defendant either created the condition or had actual or constructive notice of the condition, citing the snow/ice clearing measures undertaken by the funeral home, as well as citing the case law on “black ice” cases. The Supreme Court, Judge Martin, granted an Order of dismissal dated January 2, 2008 and the plaintiffs appealed.

The Appellate Division upheld the Supreme Court’s ruling and held that our client had established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged defect or have actual or constructive notice of the defect. The Court also ruled that the plaintiffs’ contention that the icy condition was a result of the funeral home’s negligent snow removal efforts was speculative. Additionally, the Court cited cases holding that a general awareness that a hazardous condition may be present is insufficient to establish notice.