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A DANGEROUS CONDITION, A DOOR WHICH SWUNG CLOSED ABRUPTLY, IS ALLEGED TO HAVE INJURED PLAINTIFF; TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DOOR, THE DEFENDANT MUST SUBMIT EVIDENCE THE DOOR WAS INSPECTED OR MAINTAINED AND FOUND SAFE CLOSE IN TIME TO THE INJURY; THE FAILURE TO SUBMIT SUCH EVIDENCE REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants in this premises liability case should not have been granted summary judgment. Plaintiff alleged a door closed abruptly, striking her and causing her to fall. The defendants presented no evidence when the door was last inspected or maintained. Therefore the defendants did not demonstrate a lack of constructive notice of the condition:

… [T]he defendants failed to establish, prima facie, that the condition of the door on the date of the accident did not constitute a dangerous condition … . … [T]he defendants failed to establish, prima facie, that they lacked actual or constructive notice of the alleged dangerous condition, as the defendants failed to submit any inspection or maintenance records or any other evidence showing when, if ever, the door was last inspected or maintained prior to the accident … . Ogletree v Long Is. Univ., 2024 NY Slip Op 04329, Second Dept 8-28-24

Practice Point: To warrant summary judgment where plaintiff alleges a defective condition on defendant’s property caused injury, the defendant must present proof the specific area or object alleged to be defective was inspected or maintained and found safe close in time to the incident. Over the past few years, hundreds of reversals have been based on defendant’s failure to submit such proof in support of summary judgment. The proof is essential to demonstrating defendant did not have constructive notice of the allegedly dangerous condition.

 

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