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Lack of Notice of Alleged Dangerous Condition Established by Custodian’s Testimony

The Second Department determined that the testimony of the school custodian that he had inspected the floor shortly before plaintiff allegedly slipped and fell on accumulated water entitled the defendant school to summary judgment:

” To impose liability on a defendant for a slip and fall on an allegedly dangerous condition on a floor, there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time'” … . ” A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected'” … . “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the Board of Education established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the custodian engineer assigned to clean the school. He testified that he inspects the school, including the bathrooms, every morning to make sure that it is safe and clean. He further testified that he had last inspected the subject bathroom approximately two to two and one-half hours before the infant plaintiff allegedly was injured, and that there was no liquid on the floor at that time. The Board of Education also submitted the affidavit of a school administrator who averred that the school had not received any complaints regarding water on the floor of the subject bathroom between the time of the inspection and the time of the alleged accident. Additionally, the Board of Education submitted the deposition testimony of the infant plaintiff’s mother, who admitted that, prior to the accident, the infant plaintiff never complained to her about water accumulation on the bathroom floors … . Farren v Board of Educ of City of NY, 2014 NY Slip Op 04896, 2nd Dept 7-2-14

 

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