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DEFENDANT IN THIS SLIP AND FALL CASE PROVED THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS INSPECTED (AT MOST) AN HOUR AND TEN MINUTES BEFORE THE FALL; THAT PROOF WAS SUFFICIENT TO AWARD DEFENDANT SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this slip and fall case proved it did not have actual or constructive notice of the food on the floor where plaintiff slipped and fell. Defendant’s motion for summary judgment should have been granted:

… [T]he defendant established, prima facie, that it did not create or have actual or constructive notice of the condition alleged by the plaintiff to have caused the accident. In support of its motion, the defendant submitted, inter alia, the deposition testimony of its employee, as well as the “Daily Floor-walk / Safety Inspection” record for the day of the incident, which demonstrated that the area in question was last inspected between 2:47 p.m. and 3:40 p.m. on the date of the accident and that no hazardous condition was found in that location … . The employee testified that if he had observed any hazardous condition on the floor, he would have immediately cleaned it … . In opposition, the plaintiff failed to raise a triable issue of fact. Arbit v Costco Wholesale Corp., 2024 NY Slip Op 04366, Second Dept 9-11-24

Practice Point: This is a rare decision which gives some insight into how a defendant can prove a lack of constructive notice of a dangerous condition, here food on the floor, which is alleged to have caused a slip and fall. Defendant produced a “Daily Floor-walk/Safety Inspection” record and employee testimony showing the area was inspected, at most, an hour and ten minutes before the alleged slip and fall.

 

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