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Defendant Did Not Demonstrate the Absence of Constructive Notice of the Condition Alleged to Have Caused Plaintiff to Fall–Defendant Therefore Not Entitled to Summary Judgment

The Second Department determined defendant in a slip and fall case was not entitled to summary judgment because it did not demonstrate its lack of constructive notice of the condition (glass debris):

A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . “To constitute 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 [the] defendant’s employees to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, the 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 defendants did not proffer any evidence demonstrating when the area where the plaintiff fell was last cleaned or inspected prior to the plaintiff’s accident and, thus, failed to eliminate all triable issues of fact with regard to their contention that they lacked constructive notice of the glass debris … . The defendants’ failure to establish their prima facie entitlement to judgment as a matter of law required the denial of their motion, regardless of the sufficiency of the plaintiff’s opposition papers … . Santiago v HMS Host Corp, 2015 NY Slip Op 01437, 2nd Dept 2-18-15

 

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