Defendant Did Not Demonstrate Lack of Constructive Notice in Slip and Fall Case—Slip and Fall Cause of Action Should Not Have Been Dismissed.

In a slip and fall involving snow and ice, the defendant, in seeking summary judgment, did not demonstrate a lack of constructive notice by offering “some evidence as to when the area in question was last cleaned or inspected relative to the time when plaintiff fell….”.  Specifically, the defendant “offered no evidence as to what, if any, cleaning procedures or inspection procedures were performed from December 9 … when the parking lots … were plowed, until the time of the injured plaintiff’s accident on December 12 …”.  Without such evidence, the Second Department held, the defendant did not meet its prima facie burden and the cause of action should not have been dismissed by the trial court.  Feola v City of New York, et al, 2011-06933, Index No. 101006/07, Second Dept. 1-23-13