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QUESTION OF FACT WHETHER DEFENDANT WHICH COULD STOP WORK FOR UNSAFE PRACTICES WAS A STATUTORY AGENT OF THE OWNER OR CONSTRUCTION MANAGER FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6) (FIRST DEPT).

The First Department, over a dissent, affirmed the denial of summary judgment to plaintiff on his Labor Law 240 (1) and 241 (6) causes of action. The court discussed the concept of a “statutory agent” of an owner or general contractor:

​Labor Law §§ 240(1) and 241(6) impose absolute liability on “contractors and owners and their agents” for worker injuries on construction sites… . CRSG, as site safety consultant, was neither an owner nor general contractor on the project. Thus, whether CRSG is subject to the Labor Law is dependent on whether it was an “agent” of the owners or [construction manager] at the site.

To hold a defendant liable under the Labor Law as a “statutory agent” of either the owner or the general contractor, it must be shown that the defendant had the ” authority to supervise and control'” the injury-producing work … . The determinative factor is whether the defendant had the right to exercise control over the work, not whether it actually exercised that right … . Where the owner or general contractor delegates to a third party the duty to conform to the requirements of the Labor Law, that third party becomes the statutory agent … .

The authority of DeSimone, as an employee of CRSG, to stop work in the event of unsafe practices raises an issue of fact as to whether CRSG is a “statutory agent” for purposes of the Labor Law … . Santos v Condo 124 LLC, 2018 NY Slip Op 03799, First Dept 5-29-18

​LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER DEFENDANT WHICH COULD STOP WORK FOR UNSAFE PRACTICES WAS A STATUTORY AGENT OF THE OWNER OR CONSTRUCTION MANAGER FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6) (FIRST DEPT))/STATUTORY AGENT (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER DEFENDANT WHICH COULD STOP WORK FOR UNSAFE PRACTICES WAS A STATUTORY AGENT OF THE OWNER OR CONSTRUCTION MANAGER FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6) (FIRST DEPT))

ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 240 (1) cause of action should have been dismissed. Plaintiff, while carrying a heavy pipe on a ramp, lost his balance and was struck by the pipe:

Plaintiff’s testimony established that he was not exposed to the type of elevation-related hazard contemplated by the statute. The height differential of 6 to 10 inches mediated by the ramp did not constitute a physically significant elevation differential covered by the statute … . Also, as the ramp was serving as a passageway, as opposed to the “functional equivalent” of a safety device enumerated under the statute, it did not fall within the purview of the statute … . Further, the impetus for the pipe’s descent was plaintiff’s loss of balance, rather than the direct consequence of the force of gravity … . Jackson v Hunter Roberts Constr. Group, LLC, 2018 NY Slip Op 03805, First Dept 5-29-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF LOST HIS BALANCE CARRYING A PIPE ON A RAMP, INCIDENT NOT COVERED BY LABOR LAW 240 (1) (FIRST DEPT))

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COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT).

The First Department, reversing Family Court, determined mother was entitled to a hearing on her motion for attorney’s fees in this divorce action (mother sought $174,000). Family Court had dismissed mother’s motion. The First Department held that Family Court should have looked at the future earning capacity of the parties rather than their earning capacity at the time of the decision:

The purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition … . In its dismissal of the mother’s motion for counsel fees, the court unduly relied upon the financial circumstances of the parties at the time it rendered its decision rather than weighing the historical and future earning capacities of both parties … . Here, although the father was unemployed at the time the court’s decision was rendered, and the mother had secured employment, the father earned considerably more than the mother during the course of their relationship and has significantly more expected earning capacity than the mother. Indeed, the financial and tax documents in the record support such a conclusion. The father, however, is entitled to a hearing so that the relative financial positions of the parties and the value and extent of the counsel fees requested can be examined … . Matter of Brookelyn M. v Christopher M., 2018 NY Slip Op 03801, First Dept 5-29-18

​FAMILY LAW (ATTORNEY’S FEES, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))/ATTORNEY’S FEE (FAMILY LAW, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))

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PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT).

The First Department determined plaintiff in this whistleblower action was entitled to discover medical records protected by the Health Insurance Portability and Accountability Act (HIPAA) and the Public Health Law (PHL). Plaintiff alleged he was fired, in violation Labor Law 740, in retaliation for complaining that defendant’s employees procured organs without performing tests and from people who still showed signs of life:

The records concerning these four individuals are material and necessary to plaintiff’s claim (see CPLR 3101[a]). To prevail on a claim for retaliatory termination in violation of Labor Law § 740(2), plaintiff must prove that he was fired because he objected to or threatened to disclose a practice that was in violation of a law or regulation … . The subject medical records will allegedly show that defendant pressured doctors to declare people dead in violation of regulations regarding the making of such determinations … .

… [B]ecause the subject disclosure would be made in the course of a judicial proceeding and pursuant to a qualified protective order, it is authorized under HIPAA… .

… PHL § 4351(8) renders defendant’s documents subject to the protections of the physician-patient privilege set forth at CPLR 4504. This privilege is personal to the patient and is not terminated by death … . It has not been expressly or implicitly waived in this case by the donors’ next of kin … . However, plaintiff demonstrated that the information in the medical records is material and necessary to his claim and that “the circumstances warrant overcoming the privilege and permitting discovery of the records with all identifying patient information appropriately redacted to protect patient confidentiality” … . Allowing disclosure under these circumstances is consistent with the public policy underlying the whistleblower statute, i.e., to encourage employees to report hazards to supervisors and the public … . McMahon v New York Organ Donor Network, 2018 NY Slip Op 03820, First Dept 5-29-18

​EMPLOYMENT LAW (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/LABOR LAW (WHISTLEBLOWERS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/PRIVILEGE (MEDICAL RECORDS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/CIVIL PROCEDURE (DISCOVERY, MEDICAL RECORDS,  PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/HIPAA (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/PUBLIC HEALTH LAW (MEDICAL RECORDS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/WHISTLEBLOWERS  (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/DISCOVERY (MEDICAL RECORDS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/ORGAN TRANSPLANTS  (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))

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COURT DID NOT CONDUCT SEARCHING INQUIRY INTO DEFENDANT’S REQUEST TO PROCEED PRO SE, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that the court’s inquiry into defendant’s request to proceed pro se was inadequate:

The knowing, voluntary, and intelligent waiver of the right to counsel by a defendant who seeks to proceed pro se requires a “searching inquiry” in which the court must communicate to the defendant both the “risks inherent in proceeding pro se” and “the singular importance of the lawyer in the adversarial system of adjudication” … . Neither a defendant’s expression of a strong desire to proceed pro se, nor elicitation of information demonstrating the defendant might be relatively capable of doing so, is a substitute for the two above-cited essential components of a searching inquiry, which were all but completely absent here. The relevant portion of the trial court’s colloquy with defendant on this subject was essentially limited to warning him that self-representation was a “big mistake” and that the court had seen many pro se defendants convicted after trial.

Even when the record is viewed as a whole, the required inquiry does not appear. Defendant had made several requests for self-representation before a calendar court. However, in each instance the court denied the request on the basis of its initial inquiry about defendant’s understanding of the charges, without reaching the stage of the required pro se inquiry at issue on appeal. People v Herbin, 2018 NY Slip Op 03811, First Dept 5-29-18

​CRIMINAL LAW (LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/LESSER INCLUDED OFFENSES (PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/APPEALS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))

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PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT). ​

The First Department, reversing (modifying) defendant’s conviction of robbery second, determined Supreme Court should have submitted robbery third to the jury as a lesser included offense. But because the People agreed that the conviction could be reduced to robbery third a new trial was not necessary:

There was a reasonable view of the evidence supporting defendant’s request for submission of third-degree robbery as a lesser included offense, and we have considered and rejected the People’s argument that the issue is unpreserved. The appropriate remedy for this type of error would normally be a new trial. However, the People’s concession that, if we reach this error, the conviction should be reduced to third-degree robbery renders a new trial unnecessary because the modification provides defendant with a greater remedy than he would have received had the trial court submitted that charge to the jury … . People v Cabassa, 2018 NY Slip Op 03810, First Dept 5-29-18

​CRIMINAL LAW (LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/LESSER INCLUDED OFFENSES (PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/APPEALS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))

DATE OF WOMAN’S DISAPPEARANCE, NOT THE STATUTORY DEFAULT DATE FIVE YEARS LATER, WAS THE CORRECT DATE OF DEATH (FIRST DEPT).

The First Department, reversing Surrogate’s Court, determined the date of the disappearance of Kathleen (January 31, 1982) , not the statutory default date (January 31, 1987) was the date of the Kathleen’s death:

Petitioner submitted evidence that Kathleen disappeared without explanation, and without her car and personal effects, on January 31, 1982. Kathleen has not been seen or heard from since that date. Kathleen’s sisters submit affidavits in which they recite that they were close with her, and communicated with her several times a month, prior to her disappearance. They state that it is inconceivable that Kathleen would abruptly cease all communication with family and friends. Kathleen was also a medical student at Mt. Sinai Medical School at the time of her disappearance. She was two months away from graduation. According to her family it was Kathleen’s dream to become a doctor and it would be incomprehensible that she would walk away from her studies when she was so close to her goal. Respondent … has not submitted an affidavit refuting or explaining this evidence.

We find that this evidence is sufficient to establish a “high[] probab[ility]” that Kathleen died on the date of her disappearance … . Matter of McCormack, 2018 NY Slip Op 03733, First Dept 5-24-18

TRUSTS AND ESTATES (DATE OF WOMAN’S DISAPPEARANCE, NOT THE STATUTORY DEFAULT DATE FIVE YEARS LATER, WAS THE CORRECT DATE OF DEATH (FIRST DEPT))/DISAPPEARANCE (DATE OF WOMAN’S DISAPPEARANCE, NOT THE STATUTORY DEFAULT DATE FIVE YEARS LATER, WAS THE CORRECT DATE OF DEATH (FIRST DEPT))/DEATH, DATE OF  (DATE OF WOMAN’S DISAPPEARANCE, NOT THE STATUTORY DEFAULT DATE FIVE YEARS LATER, WAS THE CORRECT DATE OF DEATH (FIRST DEPT))

QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined an issue of fact whether the defendant property owner had constructive notice of inconsistently worn and slippery steps precluded the award of summary judgment to the defendant. The First Department also found that the cause of the fall was sufficiently identified by plaintiff’s expert opinion, despite the difficulty in discerning the defect from the photographs:

Plaintiff identified the cause of his fall on stairs in a building owned and managed by defendants sufficiently to withstand summary judgment. He was not required to identify at the time of the accident “exactly where [he] fell and the precise condition that caused [him] to fall” … . He identified the location of his fall at his deposition. Plaintiff also explained that it was the “concave” shape of the steps that caused him to slip. This testimony was corroborated by plaintiff’s expert, who opined that the stairs were dangerously slippery and were disproportionately worn in the middle, creating an unsafe “inward sloping condition” … . Plaintiff’s expert’s opinion was properly considered, although it was not timely disclosed, since there was no showing of prejudice to defendants … .

Plaintiff’s evidence of the cause of his fall is also sufficient to raise issues of fact as to the existence of a defective condition. While it is difficult to discern a concave or sloping condition in the photographs in the record, the photographs are not sufficiently clear to be conclusive.

The record also presents issues of fact as to defendants’ notice of the alleged defects. Inconsistently worn and slippery steps are not latent defects and do not appear overnight. In addition, defendants submitted evidence showing that they had an opportunity to observe the defects. The building superintendent informally inspected the stairs at least three times a week during cleaning. Thus, if the defects are found to exist, it will be reasonable to infer that defendants had constructive notice of them … . Johnson v 675 Coster St. Hous. Dev. Fund, 2018 NY Slip Op 03756, First Dept 5-24-18

​NEGLIGENCE (SLIP AND FALL, QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT))/ CONSTRUCTIVE NOTICE (SLIP AND FALL, QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT))/STAIRWAY (SLIP AND FALL, QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT))

CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department determined conflicting evidence about the presence of liquid on a stairway precluded summary judgment in this slip and fall case:

Plaintiff testified that on the day of the accident (Thanksgiving) she took the stairs down from the third floor and they were dry. This was sometime between 11:30am and noon that day. When she returned some twenty minutes later, sometime between 11:50 a.m. and 12:20 p.m., plaintiff walked up the same flight of stairs. On her way up, she noticed there was some liquid or water on the steps and she sidestepped the puddle. Later that day, at 3 p.m., plaintiff took the same flight of stairs a third time, this time with her son. Plaintiff testified that as she walked down the stairs at 3 p.m. she slipped and fell. Her testimony is that she slipped on water or some liquid substance that had no smell and that it was in the same location on the stairs where she had previously observed a puddle earlier that afternoon.

Defendant denies that it had actual notice of the condition alleged. Defendant’s building caretaker testified that she inspected the staircase twice that day, following an established schedule. Her first inspection was at approximately 8:20 a.m. and her second inspection was at 12:30 p.m.. The caretaker denied having seen any liquid or water on the steps either time and defendant also contends no one made any complaints about a wet condition on the stairs that day.

The conflicting testimony as to whether or not there was water on the steps at the time the caretaker’s second inspection implicates issues of credibility. If, as plaintiff claims, there was water on the steps at or shortly before 12:30 p.m., when the caretaker did her second inspection, then defendant knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation … . The evidence submitted by defendant was not sufficient to demonstrate, prima facie, that defendant did not have actual notice of the allegedly hazardous condition prior to plaintiff’s fall … . Capers v New York City Hous. Auth., 2018 NY Slip Op 03749, First Dept 5-24-18

​NEGLIGENCE (SLIP AND FALL, CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/CONSTRUCTIVE NOTICE (SLIP AND FALL, CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/ACTUAL NOTICE  (SLIP AND FALL, CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/STAIRWAY (SLIP AND FALL, CONFLICTING ASSERTIONS ABOUT THE PRESENCE OF LIQUID ON A STAIRWAY PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))

BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT).

The First Department determined defendant property owner’s motion for summary judgment in this stairway slip and fall case was properly denied. Plaintiff alleged she tripped and fell on a crack in the stairway. A 2012 building inspection report stated that the stairway needed repair. And the defendant submitted only the building’s general cleaning routine:

The record shows that defendant failed to demonstrate that it lacked actual notice of the stairway defect, since an April 2012 building inspection report states that the property’s ramps, steps and railing required repair. Defendant also failed to demonstrate that it did not have constructive notice of the alleged defect, because it submitted evidence only as to the building’s general cleaning routine, and failed to show when the stairway had last been inspected prior to the accident … .

In light of defendant’s failure to meet its initial burden to establish that it lacked actual or constructive notice of the defective condition of the stairway, the burden never shifted to plaintiff to establish how long the condition was in existence … . Javier v New York City Hous. Auth., 2018 NY Slip Op 03736, First Dept 5-24-18

​NEGLIGENCE (BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT))/SLIP AND FALL (BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT))/CONSTRUCTIVE NOTICE (SLIP AND FALL, (BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT))/ACTUAL NOTICE (BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT))/STAIRWAY (SLIP AND FALL, BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT))

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