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DEFENDANTS’ FAILURE TO DEMONSTRATE AREA WHERE PLAINTIFF FELL WAS ADEQUATELY ILLUMINATED, AND FAILURE TO AFFIRMATIVELY DEMONSTRATE DEFENDANTS DID NOT CREATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION, REQUIRED DENIAL OF DEFENSE MOTION FOR SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant property owners were not entitled to summary judgment in this slip and fall case. The defendants had directed plaintiff to a parking lot as a smoking area (where plaintiff fell). Therefore, defendants were obliged to make sure the parking lot was adequately illuminated. The defendants’ failure to affirmatively demonstrate the area was adequately illuminated, and their failure to demonstrate they did not create the dangerous condition or have actual or constructive notice of it required denial of their summary judgment motion. [Yet another example of the necessity of affirmatively addressing every possible theory of recovery available to a plaintiff in a defense summary judgment motion.]:

 

… [H]aving directed guests to use the rear parking lot as a smoking area, they had a duty to provide adequate illumination … . The defendants failed to establish, prima facie, that the parking lot was adequately illuminated … . Contrary to the defendants’ further contention, the plaintiff was able to identify what had caused her to fall … . Additionally, the defendants failed to establish, prima facie, that they did not create the alleged hazardous condition of the parking lot or have actual or constructive notice thereof … . Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the plaintiff’s opposition papers … . Steed v MVA Enters., LLC, 2016 NY Slip Op 00960, 2nd Dept 2-10-16

 

NEGLIGENCE (FAILURE TO DEMONSTRATE AREA WHERE PLAINTIFF FELL WAS ADEQUATELY ILLUMINATED REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION)/NEGLIGENCE (FAILURE TO AFFIRMATIVELY DEMONSTRATE DEFENDANTS DID NOT CREATE OR HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION)/SLIP AND FALL (FAILURE TO DEMONSTRATE AREA WHERE PLAINTIFF FELL WAS ADEQUATELY ILLUMINATED REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION)

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DEFENDANT FAILED TO AFFIRMATIVELY ADDRESS EVERY THEORY OF LIABILITY RAISED BY... AFFIDAVITS IDENTIFYING THE CAUSE OF PLAINTIFF’S FALL, SUBMITTED IN OPPOSITION...