The Second Department, reversing Supreme Court, determined defendants' motion for summary judgment in this slip and fall case should not have been granted. Plaintiff was injured when he jumped from a step in wooden stairs as it cracked. Defendants papers did not indicate when the stairs had last been inspected. Therefore the papers did not demonstrate the absence of constructive notice:
In a premises liability case, a defendant real property owner or a party in possession or control of real property who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence … . A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it … . To meet its prima facie 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, while the evidence submitted in support of the subject branch of the defendants' motion may have demonstrated, prima facie, that they did not create the alleged condition or have actual notice thereof, it failed to demonstrate, prima facie, that they did not have constructive notice of it. Indeed, the evidence submitted on their motion failed to demonstrate when the subject staircase was last inspected relative to the plaintiff's accident … . Hanney v White Plains Galleria, LP, 2018 NY Slip Op 00130, Second Dept 1-10-18
NEGLIGENCE (DEFENDANTS IN THIS SLIP AND FALL CASE FAILED TO DEMONSTRATE WHEN THE STAIRS HAD LAST BEEN INSPECTED, THEREFORE DEFENDANTS DID NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE NOTICE AND SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT (SECOND DEPT))/SLIP AND FALL (DEFENDANTS IN THIS SLIP AND FALL CASE FAILED TO DEMONSTRATE WHEN THE STAIRS HAD LAST BEEN INSPECTED, THEREFORE DEFENDANTS DID NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE NOTICE AND SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT (SECOND DEPT))