Slip/Fall Plaintiff Survives Summary Judgment in Light of Fact Issue as to Constructive Notice

In Andersen v. El Triunfo Laundromat Corp., 54 N.Y.S.3d 166, 167–68 (N.Y. App. Div. 2d Dept. 2017), the court affirmed the denial of summary judgment to defendant in plaintiff’s slip-and-fall case. Plaintiff alleged that they slipped and fell due to the presence of a foreign substance on the floor of defendant’s premises.

Summarizing the (familiar, now well-settled) law, the court explained:

In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it[]. A defendant also may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall without engaging in speculation[]. That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall. Rather, it means only that a plaintiff’s inability to establish the cause of his or fall-whether by personal knowledge or by other admissible proof-is fatal to a cause of action based on negligence.

Applying the law, it held that “although the evidence submitted in support of the defendant’s motion demonstrated, prima facie, that it did not create or have actual notice of the alleged condition, its submissions failed to eliminate all triable issues of fact as to whether it had constructive notice of the alleged condition” and that “the defendant failed to establish, prima facie, that the cause of the plaintiff’s fall cannot be identified without engaging in speculation.”

Share This: