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PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY DEFENDANT PROPERTY OWNER IN THIS STAIRCASE SLIP AND FALL CASE, SUFFICIENTLY IDENTIFIED THE CAUSES OF PLAINTIFF’S FALL AND RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION OF THE STAIRCASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff’s deposition testimony adequately identified the causes of his staircase slip and fall and raised a question of fact about the defendant property owner’s constructive notice of the condition of the staircase. Therefore defendant’s motion for summary judgment should not have been granted:

“In a premises liability case, a defendant property owner . . . who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” … . “[A] defendant moving for summary judgment can [also] make a prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of the plaintiff’s fall without engaging in speculation” … .

Here, the defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his fall without resorting to speculation … . In support of her motion, the defendant submitted, among other things, a transcript of the plaintiff’s deposition testimony, wherein he testified that he could not see where he was stepping because of poor lighting conditions in the stairwell, and as he attempted to place his left foot on a step, either the handrail shook or his foot slipped on the carpet, and he felt himself going backward. As the plaintiff’s left foot was in the air, his right foot slipped backwards because the carpet was worn. As such, the plaintiff identified the cause of his fall as a combination of the lighting, the handrail, and the poor condition of the carpet. Therefore, the defendant failed to establish, prima facie, that the plaintiff did not know what had caused him to fall … . In addition, the defendant failed to establish, prima facie, that she did not have actual or constructive notice of the allegedly dangerous condition … . Fitzmorris v Alexander, 2025 NY Slip Op 03044, Second Dept 5-21-25

Practice Point: If a plaintiff identifies a combination of factors which allegedly caused plaintiff’s slip and fall, the plaintiff has not failed to identify the proximate cause of the fall. Here plaintiff alleged poor lighting and either the handrail shook or his foot slipped on the worn carpet. Those allegations were deemed to have sufficiently identified the proximate cause(s) of the fall and to have raised a question of fact about defendant property owner’s constructive notice of the condition of the staircase.

 

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