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Hitzfield v. Wilmorite, Inc.
Citations: 237 A.D.2d 879; 654 N.Y.S.2d 506; 1997 N.Y. App. Div. LEXIS 3463
Court: Appellate Division of the Supreme Court of the State of New York; March 13, 1997; New York; State Appellate Court
Order reversed unanimously with costs, motion denied, and complaint reinstated. Plaintiff claims she slipped and fell at Irondequoit Mall on December 7, 1991. Her attorney notified Wilmorite, Inc. a month later, attributing the incident to water accumulation on the floor due to the negligence of Wilmorite's employees and requested contact from Wilmorite’s insurance carrier. GAB Business Services Inc., the adjuster for Wilmorite, acknowledged receiving the notification and began an investigation. Plaintiff provided medical documentation to GAB and initiated legal action after rejecting a settlement offer. The complaint asserts Wilmorite had a duty to maintain the Mall safely. Wilmorite responded with a general denial and its Designated Agent participated in discovery. Following a mistrial, Wilmorite sought summary judgment, claiming it was not the Mall's owner. The Supreme Court erred in granting this motion. Evidence suggested that Wilmorite's actions led to a reasonable belief that it owned or was responsible for the Mall. Despite opportunities to clarify its lack of ownership, Wilmorite's counsel chose to remain silent for strategic reasons, which occurred after the statute of limitations had expired. This raises factual questions about whether Wilmorite should be estopped from denying ownership or maintenance duties.