​ DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION OR DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not demonstrate it did not create the dangerous condition and did not demonstrate it did not have constructive notice of the condition. A metal gate, which should have been secured, fell on plaintiff:

… [T]estimony, if credited, indicates that the gate was not secured to the track, thereby raising a triable issue of fact as to whether the manager created the alleged dangerous condition that caused the plaintiff’s injuries by failing to properly secure the gate at the end of his shift that day … .

… [T]he service manager testified at his deposition that it was his regular practice to inspect the area of the gate “two [or] three times a day,” but the defendant offered no evidence as to when the gate was last inspected on the date of the plaintiff’s injuries. The service manager’s testimony, which “merely referenced his general inspection practices” and failed to indicate when the area where the accident occurred “was last inspected . . . relative to the accident,” was insufficient to demonstrate a lack of constructive notice … . Pena v Pep Boys-Manny, Moe & Jack of Del., Inc., 2023 NY Slip Op 02530, Second Dept 5-10-23

Practice Point: Here a metal gate which should have been secured fell on plaintiff. The defendant did not demonstrate when the area where the accident occurred was last inspected. Therefore defendant failed to demonstrate it did not have constructive notice of the unsecured gate.

Similar constructive-notice issue and result in a slip and fall: Rolon v Arden 29, LLC, 2023 NY Slip Op 02545, Second Dept 5-10-23