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THE CLIMATOLOGICAL RECORDS WERE NOT CERTIFIED AS BUSINESS RECORDS AND THEREFORE COULD NOT BE RELIED UPON TO SHOW A STORM IN PROGRESS AT THE TIME OF THE SLIP AND FALL; PROOF OF A GENERAL INSPECTION ROUTINE COULD NOT BE RELIED UPON TO SHOW THE ABSENCE OF CONSTRUCTIVE NOTICE OF THE BLACK ICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this black-ice slip and fall case should not have been granted. The climatological records submitted to demonstrate there was a storm in progress at the time of the fall were not certified as business records and were otherwise insufficient. The evidence of a routine inspection practices was not sufficient to demonstrate a lack of constructive notice:

… [T]he defendant relied upon, among other things, climatological data for Poughkeepsie Airport and Danbury Municipal Airport in Connecticut, as well as spotter reports of snowfall accumulation in neighboring towns. However, because these records were not certified as business records, they were inadmissible (see CPLR 4518[a] …). In any event, the climatological data and spotter reports gathered from nearby areas were insufficient to demonstrate, prima facie, that the storm in progress rule applied … . Moreover, the climatological data was inconsistent and contradicted the parties’ deposition testimony, transcripts of which the defendant also submitted in support of its motion, as to whether precipitation was falling at or near the time of the plaintiff’s accident … . * * *

… “[M]ere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Here, the testimony of the defendant’s witness, at best, established the defendant’s general inspection practices with respect to snow and ice on the defendant’s property … . Thus, absent specific evidence that this area was inspected prior to the plaintiff’s fall, the defendant cannot rely on this testimony in meeting its prima facie burden … . Johnson v Pawling Cent. Sch. Dist., 2021 NY Slip Op 04543, Second Dept 7-28-21

 

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