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DEFENDANTS DID NOT DEMONSTRATE THEY LACKED CONSTRUCTIVE NOTICE OF CRUMBLING ASPHALT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants did not demonstrate they lacked constructive notice of the crumbling asphalt around a sewer grate in this slip and fall case. Defendants’ motion for summary judgment should not have been granted:

A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition … . In a premises liability case, a defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the condition that allegedly caused the accident nor had actual or constructive notice of its existence… . “To provide constructive notice, a dangerous condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it'” … .

Here, the evidence submitted in support of the defendants’ motion demonstrated, prima facie, that they did not have actual notice of the alleged dangerous condition, but failed to eliminate triable issues of fact as to whether they created the condition or had constructive notice of it … .Stepkowski v Holy Trinity Diocesan High Sch., 2019 NY Slip Op 00924, Second Dept 2-6-19

 

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PLAINTIFF’S EXPERT DID NOT LAY A FOUNDATION FOR AN OPINION ABOUT THE PROXIMATE... EVIDENCE SUBMITTED WITH REPLY PAPERS SHOULD HAVE BEEN CONSIDERED, NEGLIGENT...