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Town Failed to Demonstrate It Conducted a Sufficient Search for Written Notice of Defect in Slip and Fall Case

The Second Department determined a slip and fall case could go ahead because the town failed to submit sufficient proof in its summary judgment motion that town records were searched for the notice:

Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law on the ground that it had no prior written notice of the alleged defect in the parking lot…. In support of its motion, the defendant submitted the deposition testimony of its deputy director of the Department of General Services and an affidavit from its deputy comptroller. However, neither of those individuals averred that they had specifically searched the records maintained by the Town Clerk and the Town Superintendent of Highways to determine whether the defendant had prior written notice of the defect at issue. Accordingly, the burden never shifted to the plaintiff to raise a triable issue of fact, and this Court need not review the sufficiency of the plaintiff’s opposition papers ….  Betz v Town of Huntington, 2013 NY Slip Op 03809, 2nd Dept, 5-29-13

 

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