AN INSPECTION OF THE BLACKTOP FIVE TO SEVEN WEEKS BEFORE PLAINTIFF ALLEGEDLY STEPPED IN A HOLE AND FELL DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this slip and fall case did not demonstrate it did not have constructive notice of the hole in the blacktop where plaintiff allegedly fell:

“To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendants submitted evidence that a paving contractor inspected the parking lot prior to the plaintiff’s accident, and found no defective conditions in the area of the plaintiff’s accident. However, that inspection occurred approximately five to seven weeks prior to the plaintiff’s accident … . Moreover, although the defendants’ property manager submitted an affidavit in which she attested that she did not find any potholes or pothole-type conditions during her inspection of the area a few days after the plaintiff’s accident, her contemporaneous notes and her deposition testimony acknowledged that she found, and had repaired, three “tiny holes” or “small spots by each curb curve” in the subject parking lot. Hughes v Tower Crestwood 2015, LLC, 2021 NY Slip Op 04705, Second Dept 8-18-21