You are here: / / PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY DEFENDANT PROPERTY...
,

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.

 

You might also like
DEFENDANT WAS HOUSED HOURS AWAY FROM HIS BROOKLYN ATTORNEY AND ATTEMPTS TO MOVE DEFENDANT TO NEW YORK CITY WERE UNSUCCESSFUL; UNDER THE CIRCUMSTANCES, DEFENDANT WAS DENIED HIS RIGHT TO CONSULT WITH HIS ATTORNEY BEFORE ENTERING A GUILTY PLEA; THE MOTION TO VACATE THE PLEA SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE CONDITIONAL ORDER OF DISMISSAL OF THIS FORECLOSURE ACTION DID NOT MEET THE REQUIREMENTS OF CPLR 3216; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT). ​
School District Did Not Owe Special Duty to Plaintiff Injured in Fight After Hours on School Grounds; Failure to Lock Gate Not Proximate Cause of Injury
HERE THE MARINA OWNER SERVED THE BOAT OWNER WITH A NOTICE OF SALE (FOR FAILURE TO PAY STORAGE FEES) BY MAIL; THE LIEN LAW REQUIRES AN INITIAL ATTEMPT AT PERSONAL SERVICE OF THE NOTICE OF SALE BEFORE RESORTING TO SERVICE BY MAIL; THE FAILURE TO MAKE AN ATTEMPT AT PERSONAL SERVICE BEFORE SELLING THE BOAT VIOLATED THE LIEN LAW; THE SALE OF THE BOAT THEREFORE CONSTITUTED CONVERSION (SECOND DEPT).
THE LOAN SERVICER’S AFFIDAVIT IN THIS FORECLOSURE ACTION LAID A PROPER FOUNDATION FOR THE BUSINESS RECORDS DESCRIBED IN IT, BUT THE RECORDS THEMSELVES WERE NOT ATTACHED, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).
THE TIP OF PLAINTIFF THIRD-GRADER’S FINGER WAS SEVERED WHEN A DOOR IN THE SCHOOL BUILDING SLAMMED SHUT; THE DEFENDANT-SCHOOL’S (DEPARTMENT OF EDUCATION’S [DOE’S]) MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED; THE DOOR WAS NOT DEFECTIVE, THE SCHOOL HAD NO NOTICE OF A PROBLEM WITH THE DOOR, SUPERVISION COULD NOT HAVE PREVENTED THE ACCIDENT, AND NYC IS NOT LIABLE FOR AN ACCIDENT ON SCHOOL (DOE) PROPERTY (SECOND DEPT).
ALTHOUGH THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ICE AND SNOW CONDITION IN THE AREA WHERE PLAINTIFF FELL, IT FAILED TO DEMONSTRATE IT DID NOT CREATE THE CONDITION BY PILING SNOW IN THE AREA, VILLAGE’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).
Forum Selection Clause Requiring All Enforcement Actions to be Brought in Surrogate’s Court Enforced 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HERE A DISPUTE AMONG BROTHERS ABOUT OWNERSHIP OF REAL PROPERTY WAS RESOLVED... THE BANK’S UNILATERAL ATTEMPT TO REVOKE THE ACCELERATION OF THE DEBT IS...