OWNER SAID TO HAVE HAD “NOTICE” OF DEFECTIVE MAILBOX
After a “mailbox receptacle” fell on her left arm and hand, KK, a postal worker, filed suit in the Queens County Supreme Court against the building’s owner seeking to recover damages for her personal injuries.
When that owner made a pretrial motion for summary judgment dismissing the case, the judge denied the application as “premature,” and noted that it could be renewed upon the completion of all discovery.
When an appeal followed, the Appellate Division, Second Department, noted that an owner can be relieved of liability for an incident if it “did not create the hazardous or defective condition or have actual or constructive notice of its existence.” But when seeking relief via summary judgment, that request may be denied as “premature” when “discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.”
In this instance, given that the postal worker contented that the USPS records contained pertinent data, and that there was other evidence which suggested that the owner had notice of the condition, the AD2 agreed that the timing of the owner’s motion was a bit early and left the outcome undisturbed.
Guess the AD2 delivered some bad news there.
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DECISION