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THE DEFENDANT RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL HAD LAST BEEN INSPECTED PRIOR TO THE FALL; THEREFORE THE RESTAURANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE ALLEGED WET CONDITION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant restaurant (ABB) did not demonstrated when the area where plaintiff slipped and fell had been last inspected prior to the fall. Therefore ABB did not demonstrate it did not have constructive notice of the wet condition:

ABB … failed to demonstrate … that it lacked constructive notice of the alleged dangerous condition. Although ABB’s witness testified that the accident occurred five minutes after the witness had entered the restaurant and observed the floor to be dry, the plaintiff testified that the accident occurred at least one hour later, and ABB did not submit any evidence as to when it last inspected the area prior to the time when the plaintiff asserted the accident occurred … . Carey v Walt Whitman Mall, LLC, 2023 NY Slip Op 01773, Second Dept 4-5-23

Practice Point: To be entitled to summary judgment in a slip and fall case, the defendants must show where the area of the fall was last inspected prior to the fall to demonstrate it did not have constructive notice of the dangerous condition.

 

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