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Evidence of General Cleaning Practices, As Opposed to Evidence When the Area of the Slip and Fall Was Last Inspected and Cleaned, Is Not Sufficient to Demonstrate the Absence of Constructive Notice of the Dangerous Condition

The Second Department determined the lessee’s motion for summary judgment in a slip and fall case was properly denied.  The lessee, Ban Do, was responsible for snow and ice removal in the area of the fall.  In support of its motion for summary judgment, Ban Do presented only evidence of its general cleaning practices and did not specifically demonstrate when the area was last inspected and cleaned. Therefore Ban Do was unable to demonstrate the absence of constructive notice of the icy condition:

Ban Do failed to make a prima facie showing that it lacked constructive notice of the ice condition alleged by the plaintiff. Ban Do failed to present evidence establishing when it had last cleaned or inspected the area of the walkway where the plaintiff slipped and fell, relative to the time of the accident … . The affidavit of Ban Do’s principal established nothing more than Ban Do’s general cleaning practices in relation to the walkway at the rear entrance to its store, which was insufficient to demonstrate that it lacked constructive notice of the ice condition on which the plaintiff allegedly slipped and fell … . Sartori v JP Morgan Chase Bank, N.A., 2015 NY Slip Op 03516, 2nd Dept 4-29-15

 

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