THE DEFENDANT GROCERY STORE DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF’S SLIP AND FALL; THE STORE DID NOT SUBMIT EVIDENCE THAT THE AREA HAD BEEN INSPECTED CLOSE IN TIME TO THE FALL (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defendant grocery store in this slip and fall case did not demonstrate it did not have constructive notice of the condition which caused the fall:

… [T]the court erred in granting the motion with respect to the claim that defendant had constructive notice of the dangerous condition … . Defendant failed to meet its initial burden on that issue inasmuch as its own submissions raise triable issues of fact whether the wet floor “was visible and apparent and existed for a sufficient length of time prior to plaintiff’s fall to permit [defendant’s employees] to discover and remedy it” … . Although defendant submitted the affidavit and deposition testimony of its former store manager, in which he indicated that store employees routinely frequented the area and would have looked for dangerous conditions, defendant’s evidence failed to establish that the employees actually performed any security sweeps on the day of the incident, or that anyone actually inspected the area in question before plaintiff’s fall. Consequently, defendant failed to eliminate all issues of fact with respect to constructive notice … . Andrews v JCP Groceries, Inc., 2022 NY Slip Op 05422, Fourth Dept 9-30-22

Practice Point: In a slip and fall case, to demonstrate the defendant did not have constructive knowledge of the dangerous condition, the defendant must present evidence the area was inspected close in time to the fall. Without such evidence, the defendant’s motion for summary judgment must be denied.