Premises Liability Claim Brought by Plaintiff After Tripping Over a Sidewalk Defect*

Case Summary:

This is a review of a premises liability claim in which a New York City police officer was injured during a patrol. While walking his beat, he had tripped over a protrusion from the sidewalk and fell, fracturing his right ankle.

The police officer sued the City of New York and, eventually, the property owner of the building adjacent to the piece of the sidewalk where he fell. The building owner responded by filing an Order to Show Cause and a Motion for Summary Judgment.

Statement of Facts...

On March 6th, 2011, police officer Dave Velder was on duty walking his beat near 52nd Street and Broadway in New York City. As he was walking, he suddenly tripped and fell over a metal cap which was protruding up and out of the sidewalk. The fall resulted in severe pain and discomfort which prevented him from being able to stand.

Some passersby saw Velder fall and came to his aid. Velder radioed in for assistance and within a few minutes a New York City ambulance arrived. Velder was taken to Mount Sinai Hospital where he was treated. There an orthopedic surgeon ordered both an MRI and a CAT scan.

The results of the tests showed Velder suffered compound fractures to the tibia and fibula bones in his right leg, as well as a tear to his Achilles' tendon.

At first Velder filed a lawsuit against the City and not the owner of the adjacent building, Division Ten. Velder alleged the City alone was responsible for the maintenance of the sidewalk.

The City responded by denying liability for Velder's injuries, stating the metal cap he fell over was part of a water line which fed the building owned by Division Ten. As a result they said Division Ten should be liable, and not the City.

Because of Court delays, Division Ten wasn't brought into Velder's lawsuit until 120 days had elapsed since the original lawsuit had been filed.

Division Ten prepared a Motion for Summary Judgment alleging although its property abutted the sidewalk, it didn't own the sidewalk, nor was it responsible for its maintenance. Division Ten asked the Court to grant their Motion and dismiss the case against them.

The problem though was that New York State had a law which prohibited a defendant from filing a Motion for Summary Judgment after 120 days passed from the filing of the original lawsuit. Division Ten wasn't brought into the lawsuit until the 120th day.

They knew they didn't have enough time to prepare and file a Motion for Summary Judgment against the City, and they quickly prepared an Order to Show Cause requesting the Court grant them additional time to file their Motion.

Requests for Orders to Show Cause are sometimes used in premises liability claim injury lawsuits as well as other civil lawsuits. Many times they are filed as emergency measures.

Orders to Show Cause are different from other motions in that they only require one party to be present at the hearing. After the court decides the motion, it will come back to it a period of time later and listen to any arguments from the opposing party. The Court can then decide to either uphold its decision or reverse it.

Because only one party needs to be present, Orders to Show Cause can proceed faster than a normal motion. They are also one of the few ways in a premises liability claim for one party to interact with the court without having to notify the opposing side first.

The Court heard Division Ten's request for an Order to Show Cause. The hearing was held without the City knowing about or being present to argue against it.

The Court granted Division Ten's Order and extended the time period for Division Ten to file its Motion for Summary Judgment an additional 90 days.

Motion for Summary Judgment...

A Motion for Summary Judgment is a legal tool usually filed by a defendant in a lawsuit. It is a statement to the Court saying the Plaintiff's lawsuit really doesn't allege any material facts or issues to be tried, and that allowing the case to go to trial would be a waste of the Court's and the defendant's time.

Once a defendant files his Motion for Summary Judgment, the burden shifts to the plaintiff to show he does have sufficient material facts to establish a prima facie case.

Having a prima facie case for Velder meant he had to place into evidence enough facts so there was at least a presumption that Division Ten or the City may have actually done something wrong, which then resulted in Velder's injuries.

Specifically, to get his premises liability claim to trial, Velder had to show:

  1. Division Ten, the City, or both owed Velder a "duty of reasonable care";

  2. That they breached that duty of care; and

  3. That breach resulted in Velder's injuries.


In this case the Court found Velder's evidence was sufficient to prove both Division Ten and the City owed Velder a duty of reasonable care, and that they breached that duty, resulting in Velder's injuries.

The jury decided in favor of Velder, awarding him the amount of $150,300.

Important Points...

  • An Order to Show Cause is a legal remedy which can be relied on if it appears the other side in a lawsuit is about to do something illegal, inappropriate, or dishonest. It may also be used to grant other extraordinary relief in personal injury cases.

  • In a premises liability claim lawsuit, it is incumbent upon a plaintiff to place into evidence sufficient facts to show he established a Prima Facie case.

    If his evidence is composed of merely conjecture, innuendo, or supposition, and void of facts sufficient to raise some question about whether the defendant owed him a duty of reasonable care and the defendant breached that duty resulting in a plaintiff's injuries, his case me be dismissed even before it even begins, or when a jury finds in favor of the defendant.

*This case example is for educational purposes only. It is based on actual events although names have been changed to protect those involved. Any resemblance to real persons or entities is purely coincidental.

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