Thursday, April 7, 2016

Summary judgment in a slip-and-fall action.

Practice point:  The defendant's maintenance employee testified at his deposition about his regular cleaning routine for the building, but he had no independent recollection of having cleaned the floor on the date of the plaintiff's accident.  There was no deposition testimony describing the condition, including whether the maintenance employee had seen water on the floor.  Since the defendant did not submit evidence regarding any specific inspection or cleaning of the area on the date of the accident, the defendant failed to establish that it did not have constructive notice of the alleged dangerous condition.  In addition, the defendant's submissions did not eliminate all triable issues of fact as to whether it created the alleged dangerous condition.  Therefore, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, and the Appellate Division affirmed the denial of the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers.

Student note:  A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.  To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall. Mere reference to general cleaning practices, without evidence of any specific cleaning or inspection of the area, does not establish lack of constructive notice.

Case:  Ansari v. MB Hamptons, LLC, NY Slip Op 02305 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The death of a party.