DEFENDANT DID NOT DEMONSTRATE THE RUNG ON THE SIDE OF A DUMPSTER, WHICH WAS ALLEGED TO HAVE CAUSED PLAINTIFF’S SLIP AND FALL, WAS NOT DANGEROUS, AND DID NOT DEMONSTRATE IT DID NOT HAVE 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 that defendant’s motion fore summary judgment in this slip and fall case should not have been granted. Plaintiff alleged he slipped and fell because the top rung on the side of a dumpster was bent:

… [T]he defendant failed to establish its prima facie entitlement to judgment as a matter of law. The evidence submitted by the defendant in support of its motion, including a transcript of the plaintiff’s deposition testimony and a photograph of the dumpster, failed to establish, prima facie, that the top rung of the dumpster was not in a hazardous condition … , or that the plaintiff did not know what caused him to fall … .

The defendant also failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition of the top rung of the dumpster. The defendant did not submit any evidence as to when the dumpster was last inspected prior to the incident, and given the photographic evidence, it cannot be said as a matter of law that the alleged hazardous condition was not visible and apparent, and had not existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it … . In addition, the defendant failed to establish, prima facie, that the plaintiff was the sole proximate cause of the accident … . Rosales v Five Star Carting, Inc., 2020 NY Slip Op 03934, Second Dept 7-15-20