FOR IMMEDIATE RELEASE

January 1, 2019

Contact:Eric W. Boyer, Esq.
Managing Partner
305.670.1101 Ext. 1023
Email: eboyer@qpwblaw.com

 

QPWB OBTAINS SUMMARY JUDGMENT DISMISSING ALL CLAIMS AGAINST
LANDOWNER AND MANAGING AGENT FOR ALLEGEDLY DEFECTIVE
GUTTERS AND FAILURE TO REMOVE ICE FROM SIDEWALKS

Candace
Candace R. Johnson
Nicole M. Varisco
Nicole M. Varisco

NEW YORKNicole M. Varisco and Candace R. Johnson, attorneys in the New York City office of Quintairos, Prieto, Wood & Boyer, P.A., obtained summary judgment dismissing plaintiff’s Complaint in its entirety in New York Supreme Court, Nassau County. Plaintiff alleged he slipped on an icy condition located on the sidewalk behind the pizzeria where he was a manager.  Interestingly, plaintiff admitted he did not observe ice on the sidewalk at any point prior to his fall and that he was responsible for removal of ice at the location as part of his managerial duties.  Plaintiff also claimed that a nearby gutter was defective as it improperly discharged water onto the sidewalk and likely caused the icy condition.  However, the only evidence introduced by plaintiff regarding the cause of the icy condition, including testimony of a meteorologist and engineer, was speculative.

QPWB argued that the claims against the landowner and managing agent must be dismissed because neither received prior notice of the alleged condition, and it did not exist for a sufficient period of time based upon plaintiff’s own admissions that he traversed the area earlier that same day and did not observe same.  Plaintiff filed a cross motion for summary judgment and opposition to QPWB’s motion, arguing that the mere existence of allegedly defective gutters which discharge water onto the sidewalk at the premises gives rise to a presumption that defendants created and/or knew of the condition.  To support these arguments, plaintiff submitted affidavits by a meteorologist and engineer to opine regarding how water could have dripped from the gutters and formed ice on the sidewalk. Plaintiff also argued several building code violations warranted summary judgment in plaintiff’s favor.  However, in reply, QPWB argued that the building code violations were not properly alleged in the Complaint or Bill of Particulars and could not be considered.  QPWB also argued that the expert testimony proffered by plaintiff was completely speculative and insufficient to overcome summary judgment. Third-party defendants, a snow removal company and owner of the pizzeria, filed a cross motions for summary judgment and opposition to QPWB’s motion.

On November 29, 2018, the Honorable Steven M. Jaeger, J.S.C. entered an Order granting the  motion for summary judgment against the plaintiff, dismissing plaintiff’s case and the third-party action in their entirety, and denying all other motions as moot. The Judge concluded there was no evidence of prior notice of any allegedly defective condition (neither the ice nor the alleged defective gutters) to defendants, warranting dismissal of the Complaint in its entirety. He also agreed that (1) plaintiff failed to timely and properly allege the building code violations; and (2) that the testimony proffered by plaintiff’s experts was entirely speculative and insufficient to overcome summary judgment.  Accordingly, the Judge dismissed the plaintiff’s Complaint, and consequently, the Third-Party Complaint too.

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For further details and/or a copy of the decision, please contact Nicole M. Varisco (nicole.varisco@qpwblaw.com) or Candace R. Johnson (candace.johnson@qpwblaw.com).

ABOUT QPWB

Nicole Varisco, a partner in the New York and New Jersey offices, represents corporations and individuals in both federal and state courts throughout New York and New Jersey. She focuses on general liability, medical malpractice and long-term care facility defense; and has significant experience representing clients in premises liability, products liability, class action litigation, property damage, labor law, construction defense and insurance coverage disputes, among other practices. She received her J.D. cum laude from Pace University School of Law in 2010.

Candace R. Johnson, an associate practicing from the New Jersey and New York offices, focuses on general liability, insurance defense litigation and insurance coverage/bad faith claims; automobile liability, premises liability, product liability and workers’ compensation defense.  Her practice also includes default servicing, banking, mortgage lending, title insurance, construction and development among other practices. She received her J.D. from Seton Hall University School of Law in 2011. Ms. Johnson is also licensed to practice in Maryland.

Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with more than 380 lawyers serving clients from 23 offices in the United States and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.