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DEFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendants’ motion for summary judgment in this slip and fall case was properly denied. Plaintiff was injured when a concrete step broke and gave way.  Defendants did not demonstrate when the area in question was last inspected and did not demonstrate the defect at issue was latent:

A defendant moving for summary judgment in a slip-and-fall case has the initial burden of establishing that it did not create the alleged dangerous or defective condition or have either actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . 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 is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall” … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … .

Here, in the absence of any evidence as to when the defendants last inspected the subject staircase before the accident, or that the condition of the step was a latent defect that could not have been discovered upon a reasonable inspection, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly defective condition of the subject step … . Gairy v 3900 Harper Ave., LLC, 2017 NY Slip Op 00458, 2nd Dept 1-25-17

 

NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED)/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED)/NOTICE (SLIP AND FALL, EFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED)

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS INTERSECTION ACCIDENT CASE, WHETHER... DEUTSCHE BANK BREACHED CREDIT DEFAULT SWAP AGREEMENTS.