DEFENDANT FAILED TO AFFIRMATIVELY ADDRESS EVERY THEORY OF LIABILITY RAISED BY THE COMPLAINT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE.

The Second Department, reversing Supreme Court, determined summary judgment should not have been granted to the defendant in this slip and fall case. The plaintiffs had sufficiently identified the cause of the fall (uneven floor). Defendant failed to affirmatively demonstrate the uneven floor was not a dangerous condition, and further failed to affirmatively demonstrate she had no notice of the condition and she did not create the condition. [Once again, a defendant must affirmatively address all possible theories of recovery in a motion for summary judgment.]:

 

To impose liability upon a defendant for a plaintiff’s injuries, there must be evidence showing the existence of a dangerous or defective condition, 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 … . Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the circumstances of each case, and is generally a question of fact for the jury … . The defendant failed to establish, prima facie, that the subject staircase was not in a defective condition and that she did not create the alleged hazardous condition or have actual or constructive notice of such condition … . Since the defendant failed to meet her burden as the movant, it is not necessary to review the sufficiency of the plaintiffs’ opposition papers. Davis v Sutton, 2016 NY Slip Op 00923, 2nd Dept 2-10-16

 

NEGLIGENCE (SLIP AND FALL, DEFENSE MOTION FOR SUMMARY SHOULD NOT HAVE BEEN GRANTED, DID NOT ADDRESS ALL THEORIES OF RECOVERY RAISED BY COMPLAINT)/SLIP AND FALL (SLIP AND FALL, DEFENSE MOTION FOR SUMMARY SHOULD NOT HAVE BEEN GRANTED, DID NOT ADDRESS ALL THEORIES OF RECOVERY RAISED BY COMPLAINT)