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Plaintiff’s expert’s opinion that playground groundcover was dangerous where it did not meet Consumer Product Safety Commission did not raise an issue of fact because guidelines were not mandatory, entitling school district to summary judgment. Boland v North Bellmore Union Free Sch. Dist.
Comment: The Second Department’s rule that non-mandatory guidelines do not raise issues of fact, first enunciated in McCarthy v. State, 167 A.D.2d 516 (2nd Dept. 1990), eliminates non-mandatory guidelines or standards as evidence of negligence or a dangerous condition and is part of a trend in the appellate divisions. It appears, however, to conflict with rulings by the Court of Appeals which have denied summary judgment based on CPSC guidelines, including guidelines for playground ground cover. Butler v. City of Gloversville, 12 N.Y.3d 902 (2009)(ground cover); Kriz v. Schum, 75 N.Y.2d 25 (1989).
Motion to set aside verdict by defendant found 85% at fault denied where jury could have believed that moving defendant drove onto grass in order to pass defendant found 15% at fault as part of a non-verbal communication. This version “was not manifestly untrue, physically impossible, or contrary to common experience” and, therefore, based on a fair interpretation of the evidence. Fruendt v Waters
NYCHA granted summary judgment on affidavit of caretaker that he received no complaints of urine on the stairs, and that he inspected staircase twice a day when he would mop up any urine or other substance found making a checklist after the morning inspection which he submitted for the morning before the accident. Plaintiff failed to show a recurring dangerous condition routinely unaddressed. Canteen v New York City Hous. Auth.
Injured passenger in car who settled with other vehicle, signing general release that included carrier for car she was in, whose owner and driver were included in suit, barred from making SUM claim based on release. Matter of Travelers Home & Mar. Ins. Co. v Fiumara
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Worker who fell off flatbed truck when steel beams hoisted above him without tag lines swung towards him granted summary judgment on Labor Law §240(1), and §241(6) based on industrial code 12 NYCRR 23-8.2(c)(3)(tag lines), because risk of hoisted load presented gravity related risk. Flores v Metropolitan Transp. Auth.
Man walking next to niece in crosswalk, with light, entitled to summary judgment on his affidavit that defendant failed to yield right-of-way when he turned right, struck niece knocking her into plaintiff. Defendant did not submit affidavit with opposing facts or explain what information exclusively within plaintiff’s knowledge could be revealed by discovery. Lazarre v Gragston
Plaintiff’s motion for summary judgment for rear-end collision before discovery denied as premature where defendants showed that discovery might lead to relevant information regarding how the accident occurred, including whether defendants’ vehicle was struck in the rear and pushed into plaintiff’s car. Hawana v Carbuccia
Property owner granted summary judgment where both plaintiff and defendant testified that there was nothing wrong with step ladder plaintiff fell from, and that white substance plaintiff noticed on step ladder was not slippery and she did not testify that the substance was slippery or sticky on her inspection months later. Expert’s opinion as to what substance might have been based on inspection 4 years later did not raise issue of fact. Fuentes v Theodore
Plaintiff met burden for summary judgment before discovery by her affidavit showing that defendant failed to yield the right-of-way at 4 stop intersection but denied summary judgment based on defendant’s affidavit giving a different version of how accident occurred. Tiberg v Strebel-Eichner
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