In this premises liability action, the plaintiff sustained serious  injuries  when he fell on a public sidewalk due to an alleged  defective condition in a tree well abutting our client’s restaurant.   After the completion of discovery, we successfully moved, on behalf of our clients, for summary judgment seeking dismissal of the complaint contending that we did not own nor create the tree well, had no obligation to maintain or repair it, and did not owe the plaintiff any duty of care. Further, we successfully demonstrated that our clients made no  “special use” of the tree well. The Supreme Court, Suffolk County, granted the motion, and the plaintiff appealed.

The Second Department Court agreed that Fleischner Potash, on behalf of its clients, established a prima facie case of entitlement for summary judgment  which plaintiff failed to rebut by raising a triable issue of fact. Accordingly, the Appellate Division affirmed the order granting summary judgment and awarded a bill of costs.  Donald O'Brian, et al., appellants, v. Village of Babylon, et al. 196 A.D.3d 494 (Second Dept. 2021).

To learn more about this result or other ways Fleischner Potash can help your claims team, please contact Wendy Cardali at wcardali@fp.law.

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