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DEFENDANT DID NOT PRESENT EVIDENCE THAT THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON ICE WAS INSPECTED OR TREATED ON THE DAY OF THE FALL, THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it did not have constructive notice of the icy condition in this slip and fall case. The defendant presented evidence of the manager’s and superintendent’s general practices but did not present evidence was inspected or treated on the day of the fall:

“To meet its initial burden on the issue of lack of constructive notice, [a] 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, the defendant failed to demonstrate, prima facie, that it did not have constructive notice of the alleged ice condition that caused the plaintiff to fall. The deposition testimony of the defendant’s site manager merely referred to her general practice of traversing the breezeway where the accident allegedly occurred, one to two times per week, but provided no evidence regarding any specific inspection of the area prior to the plaintiff’s fall … . … The superintendent’s testimony failed to provide specific details of his snow removal efforts and salting near the time of the incident, and, thus, was too general to establish lack of constructive notice … . Ahmetaj v Mountainview Condominium, 2019 NY Slip Op 02489, Second Dept 4-3-19

 

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CAUSE OF ACTION BASED UPON A THEORY NOT ALLEGED IN THE NOTICE OF CLAIM PROPERLY... PLAINTIFF PRESENTED ONLY SPECULATION ABOUT THE CAUSE OF HER SLIP AND FALL, LANDLORD’S...