In a matter pending in Supreme Court, New York county, Andrew C. Kaye obtained summary judgment on behalf of a snow removal company in a slip and fall case.
Plaintiff alleged that on December 28, 2011, he was coming out of a bank when he slipped and fell in an area of the sidewalk that was not shoveled, despite the presence of a nearby path. Plaintiff alleged the snow removal company failed to properly clear or salt the path, arguing therefore, that it did not matter that he chose to walk in an area that was not shoveled. As a result of the accident and resultant injuries, plaintiff claims he lost his moving business and sought more than $1,500,000 in damages.
Because the bank had cross-claims against the snow removal company, Mr. Kaye sought to offer an argument that went beyond an Espinal defense, and using the precise language of plaintiff’s deposition testimony, Mr. Kaye developed an argument that plaintiff was the sole proximate cause of his accident. The Court agreed, noting plaintiff’s claims about the condition of the path were red herrings and that no reasonable fact finder would conclude defendants were negligent. The Court also granted summary judgment in favor of the snow removal company dismissing the bank’s third-party claims for breach of contract.