DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION AND DID NOT DEMONSTRATE IT DID NOT HAVE KNOWLEDGE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Stop 1’s) motion for summary judgment in this slip and fall case should not have been granted. The decision does not describe the facts but apparently rainfall had something to do with the fall:

Defendant (Stop 1) did not meet its initial burden of demonstrating “that it neither created a hazardous condition, nor had actual or constructive notice of its existence” … , as it made no specific, affirmative showing that it did not have actual or constructive notice of the hazardous condition. Defendants failed to establish their prima facie entitlement to summary judgment as they “failed to offer specific evidence as to their activities on the day of the accident, including evidence indicating the last time [the area in question] was inspected, cleaned, or maintained before [the] fall” … . Witness Nashwen Nagi testified that he was not in the bodega at the time of plaintiff’s accident because he was on vacation, and did not have any knowledge of the accident until Stop 1 received a letter from plaintiff’s lawyer. According to Nagi, Stop 1 did not maintain employment or repair records for the bodega.

The record in any event raises triable issues of fact sufficient for trial, as the affidavit from a nonparty witness presents an issue as to how long before the accident the rain had started. Ruiz v Stop 1 Gourmet Deli, 2020 NY Slip Op 04000, First Dept 7-16-20