Defendant Presented No Evidence When Defective Bar Stool Was Last Inspected and No Evidence the Defect Was Latent—Summary Judgment Properly Denied

The Second Department determined the defendant was not entitled to summary judgment in a premises liability case.  Part of plaintiff’s finger was severed when he sat down on a bar stool.  There was a gap when the stool was lifted by the seat because the screws connecting the seat to the frame were either missing or loose:

In a premises liability case, the defendant property owner who moves for summary judgment has the initial burden of establishing that it did not create the defective condition or have actual or constructive notice of its existence … . To provide constructive notice, “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it… . “[C]onstructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection” … .

Here, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint since the defendant failed to establish, prima facie, that it maintained its premises in a reasonably safe condition and that it did not create the alleged defective condition or have actual or constructive notice of it … . The defendant failed to specify when it last inspected the subject stool prior to the accident. Additionally, the defendant failed to show that the alleged defective condition of the stool was latent. McGough v Cryan Inc, 2013 NY Slip Op 07944, 2nd Dept 11-27-13