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THE DEFENDANT IN THIS SLIP AND FALL CASE DID NOT PRESENT EVIDENCE DEMONSTRATING WHEN THE AREA OF THE SLIP AND FALL WAS LAST CLEANED OR INSPECTED; ONLY EVIDENCE OF GENERAL CLEANING PRACTICES WAS PRESENTED; DEFENDANT SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant shopping mall in this slip and fall case did not demonstrate it did not have constructive notice of the oily patch in the parking lot where plaintiff slipped and fell. Plaintiff testified she saw the oily patch on the way into the mall and slipped and fell an hour later. The defendant presented evidence of its general cleaning and inspection practices, but did not demonstrate when the are was last cleaned or inspected:

To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the accident … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice”… .

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the condition that allegedly caused the plaintiff to fall . The plaintiff testified at her deposition that she saw the oily patch on the ground of the parking lot on her way into the shopping mall, approximately an hour before she slipped and fell after exiting the mall. The defendant’s property manager only testified about the defendant’s general cleaning and inspection procedures. Armenta v AAC Cross County Mall, LLC, 2023 NY Slip Op 04355, Second Dept. 8-23-23

Practice Point: For years slip and fall cases were reversed on this ground (no proof when the area was last cleaned or inspected) every week, now the reversals have slowed to a trickle but still …

 

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