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DEFENDANT PROPERTY MANAGER AND DEFENDANT OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE KNOWLEDGE OF THE ICE AND SNOW CONDITION WHERE PLAINTIFF FELL IN THIS STRIP MALL PARKING LOT SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this parking lot slip and fall case should not have been granted. The defendant Benderson managed the strip mall where the slip and fall occurred, and defendant Fitzgerald owned the property. The defendants did not demonstrate they did not have construction notice of the snow and ice condition:

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . This burden cannot be satisfied merely by pointing out gaps in the plaintiff’s case, as the defendants did here… . The defendants failed to show what the accident site actually looked like within a reasonable time after the cessation of the prior snowstorm and what the accident site actually looked like within a reasonable time prior to the incident. The defendants also failed to submit any meteorological data to show that the alleged ice condition that caused the plaintiff to fall was not the product of a prior storm. Bronstein v Benderson Dev. Co., LLC, 2018 NY Slip Op 08625, Second Dept 12-19-18

 

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