DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF A PROTRUDING NAIL IN A BASEMENT STAIRWAY WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT DID NOT PRESENT EVIDENCE DEMONSTRATING WHEN THE STAIRWAY WAS LAST CLEANED OR INSPECTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate a lack of constructive notice of a protruding nail in a basement stairway which allegedly caused plaintiff to slip and fall. The defendant did not present any evidence demonstrating when the stairway was last inspected or cleaned:

… [T]he defendants failed to establish, prima facie, that 234-236 Elmendorf Street, LLC [the property owner], lacked constructive notice of the protruding nail condition alleged by the plaintiff … . Although the defendants submitted a transcript of the plaintiff’s deposition testimony wherein she averred that she did not notice the protruding nail when she last used the staircase approximately one week prior to her accident, the defendants did not establish that the condition did not exist for a sufficient length of time prior to the alleged accident in order for it to be remedied … . Moreover, the defendants failed to submit sufficient evidence as to when 234-236 Elmendorf Street, LLC, had last cleaned or inspected the staircase at issue … . Jones v 234-236 Elmendorf St., LLC, 2025 NY Slip Op 01083, Second Dept 2-27-25

Practice Point: Here the plaintiff’s deposition testimony that she did not notice the protruding nail the week before her fall was not sufficient to demonstrate defendant property owner did not have constructive knowledge of the protruding nail. No evidence of when the stairway was last cleaned or inspected was presented.