DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF FELL WAS LAST CLEANED OR INSPECTED; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant in this slip and fall case did not demonstrate it lacked constructive notice of the water on the floor as a matter of law. Defendant did not submit any proof demonstrating when the area was last cleaned or inspected:

To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . A “defendant cannot satisfy its burden merely by pointing out gaps in the plaintiff’s case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident” … . While defendant submitted evidence that it hired a contractor who was generally expected to clean up any hazards, such as water on the floor, it did not submit evidence establishing when the area of plaintiff’s fall was last inspected … . As a result, ” ‘[a] triable issue of fact exists as to when the [area of plaintiff’s fall] was last inspected in relation to the accident and, thus, whether the alleged hazardous condition . . . existed for a sufficient length of time prior to the incident to permit . . . defendant to remedy that condition’ ” … . Furthermore, “[t]he fact that plaintiff did not notice water on the floor before [s]he fell does not establish defendant[‘s] entitlement to judgment as a matter of law on the issue whether that condition was visible and apparent” … . Arghittu-Atmekjian v TJX Cos., Inc., 2021 NY Slip Op 02689, Fourth Dept 4-30-21