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DEFENDANT PROPERTY OWNER DID NOT PROVE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON BLACK ICE WAS LAST INSPECTED OR CLEANED; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate it did not have constructive notice of the black ice in the parking lot where plaintiff slipped and fell. Defendant did not submit evidence of when the area was last cleaned or inspected:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . Accordingly, a property owner seeking summary judgment in a slip-and-fall case “has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged ice condition. The defendant provided no evidence regarding any specific inspection of the subject area prior to the plaintiff’s fall, and there are triable issues of fact as to whether the alleged ice condition had existed for a sufficient length of time before the accident such that the defendant could have discovered and corrected it … . Edwards v Genting N.Y., LLC, 2023 NY Slip Op 03223, Second Dept 6-14-23

Practice Point: To demonstrate a lack of constructive notice of a dangerous condition in a slip and fall case, a property owner must submit proof the area was inspected or cleaned close in time to the fall.

 

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