In Lebron v. 142 S 9, LLC, 151 A.D.3d 835, 54 N.Y.S.3d 679, 680 (N.Y. App. Div. 2d Dept. June 14, 2017), the Second Department affirmed the lower court’s denial of defendant’s motion for summary judgment on plaintiff’s personal injury slip-and-fall case. Here, plaintiff alleged that she was injured when she slipped and fell on water on a stairway in a building owned by defendants.
In reaching its conclusion that defendant was not entitled:
The defendants failed to demonstrate, prima facie, that they lacked notice of the alleged water on the stairs so as to establish their entitlement to judgment as a matter of law[]. A defendant has constructive notice of a dangerous condition when the condition has been visible and apparent long enough for the defendant to have discovered and remedied it[].
Here, the defendants did not submit any evidence regarding specific cleaning or inspection of the area in question, or any other affirmative proof to demonstrate how long the condition had existed. Rather, they merely provided evidence regarding the general cleaning practices and inspection procedures employed by the building superintendent, which is insufficient to establish a lack of constructive notice[]. Further, the defendants’ contention that the “water could have been deposited there only minutes or seconds before the alleged fall” is pure speculation, and the defendants cannot satisfy their initial burden on summary judgment merely by pointing to gaps in the plaintiff’s case[]. (Emphasis added.)
The court concluded that “[s]ince the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, the Supreme Court properly denied their motion without regard to the sufficiency of the plaintiff’s opposition papers[].”