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DEFENDANTS DEMONSTRATED THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case were entitled to summary judgment, in part because they demonstrated they did not have actual or constructive notice of the water on the floor in the laundry room where plaintiff allegedly fell:

… [T]he defendants established, prima facie, that they maintained their premises in a reasonably safe condition and that they did not create the alleged hazardous condition or have actual or constructive notice of its existence … . In support of their motion, the defendants submitted, inter alia, a transcript of the deposition testimony of the plaintiff, who testified that she did not see any water when she was last in the laundry room approximately 40 minutes prior to the accident. The defendants also submitted evidence that the machine was serviced by a vendor three days prior to the incident and that when the vendor left the premises, the machine was in working condition. When the vendor inspected the machine again on the day of the accident, the vendor determined that the machine was in working condition and that any leak was caused by the use of too much soap. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had actual notice of a recurring hazardous condition and, thus, could be charged with constructive notice of the subject condition. The plaintiff’s daughter’s affidavit submitted in opposition to the motion merely showed that the defendants had a general awareness that, at times, water leaked from the machine at issue … . Daniel v York Terrace, Inc., 2024 NY Slip Op 05432, Second Dept 11-6-24

Practice Point: In this slip and fall case, defendants demonstrated the area where plaintiff allegedly slipped and fell had been inspected 40 minutes prior to the fall and there was no water on the floor. In addition the defendants demonstrated the washing machine was serviced three days before the fall. That proof was sufficient to demonstrate, prima facie, that defendants did not have actual or constructive notice of the water on the floor.

 

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