NY: Nine Years too Long to Vacate a Court Order

In Abrams v. Berelson, the defendant hired the plaintiff to clean her mother’s house after her mother passed away. As they were cleaning the house, the plaintiff’s coworker found a gun in the closet and accidentally shot the plaintiff. Plaintiff sued the defendant, arguing actual or constructive notice of a dangerous condition in the home.

The lower court granted the defendant’s summary judgment motion in 2000, finding that the plaintiff had failed to raise an issue of fact as to actual or constructive notice.

Nine years later, the plaintiff located his former coworker and obtained an affidavit stating that the gun was in a large box in the closet and that it would have been impossible for someone not to notice the gun upon opening the closet. The lower denied the plaintiff’s motion to renew/reargue, finding that the plaintiff failed to demonstrate a reasonable justification for his failure to obtain this new evidence sooner. Moreover, the plaintiff waited six months after obtaining the affidavit to make his motion to renew.

The Second Department affirmed the lower court’s decision. The Appellate Court also noted that the affidavit did not present issues of fact regarding the defendant’s notice. The defendant would only be liable if she had actual or constructive notice of a loaded gun in her mother’s house. The coworker’s affidavit simply showed that the defendant might have had notice of a gun in the house, which was not a dangerous condition.

Thanks to Georgia Stagias for this post.

For more information email Denise Ricci at dricci@wcmlaw.com.