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DEFENDANT DID NOT SUBMIT PROOF DEMONSTRATING WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED BEFORE THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; THE VIDEO SUBMITTED BY THE DEFENDANT WAS NOT AUTHENTICATED SO IT SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT). ​

he Second Department, reversing Supreme Court, determined defendant NYC Transit Authority was not entitled to summary judgment dismissing plaintiff’s slip and fall action. Plaintiff alleged she slipped and fell on a wet substance on the floor of defendant’s bus. The evidence of when the floor was last inspected was insufficient to show a lack of constructive notice. And the video submitted by the defendant was inadmissible because it was not authenticated:

The deposition testimony of a dispatcher employed by the defendant merely referred to general pre-trip inspection procedures performed by drivers. The defendant failed to present any evidence regarding “specific cleaning or inspection of the area in question relative to the time when the subject accident occurred” … .

Further, the defendant could not rely upon the video of the bus that it submitted on its motion so as to meet its prima facie burden, as the video was not authenticated, and thus, was not in admissible form … . Harrington v New York City Tr. Auth., 2024 NY Slip Op 00297, Second Dept 1-24-24

Practice Point: To demonstrate a lack of construction notice of the condition in a slip and fall case, the defendant must submit evidence of a specific inspection of the area close in time to the fall. Evidence of general inspection practices is never enough.

Practice Point: In order to submit a video in evidence, it must be authenticated.

 

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