[Updated February 15, 2016]

PRACTICE PAGE NO.1

 

SUMMARY JUDGMENT MOTIONS

 
DEFENSE MOTIONS--SLIP AND FALL CASES
 
ISSUES: (1) NOTICE OF THE DANGEROUS CONDITION; (2) CREATION OF THE DANGEROUS CONDITION
 
CASE SUMMARIES WHICH ILLUSTRATE THE STRINGENT PROOF REQUIREMENTS IMPOSED BY OUR APPELLATE COURTS IN THIS CONTEXT

 

 

DEFENSE SUMMARY JUDGMENT MOTIONS---GENERALLY

 

A DEFENDANT BRINGING A SUMMARY JUDGMENT MOTION MUST "THINK LIKE A PLAINTIFF" AND OFFER AFFIRMATIVE PROOF TO NEGATE EVERY POSSIBLE THEORY OF RECOVERY AVAILABLE TO THE PLAINTIFF.

 

CONVERSELY, A PLAINTIFF DEFENDING A SUMMARY JUDGMENT MOTION MUST "THINK LIKE A DEFENDANT" AND EXPOSE ANY FAILURES IN THE DEFENDANT'S PROOF.

 

A frequent, recurring issue in the appellate review of summary judgment motions brought by a defendant is the fatal failure to affirmatively address all possible theories of recovery available to the plaintiff.

 

In bringing a summary judgment motion, a defendant must "think like a plaintiff." Every potential theory under which the plaintiff could prevail must be affirmatively addressed and negated in the defendant's papers.

 

If even one potential theory of recovery is left out of or inadequately addressed in the defendant's papers, the motion will be denied, WITHOUT ANY NEED FOR THE COURT TO ADDRESS PLAINTIFF'S OPPOSING PAPERS.

 

A plaintiff defending a summary judgment motion, therefore, should "think like a defendant" and expose any and all gaps in the defendant's proof.

 

 

THE SLIP AND FALL CASES SUMMARIZED BELOW

 

FAILURES OF PROOF IN DEFENSE MOTIONS FOR SUMMARY JUDGMENT OCCUR IN ALL AREAS OF THE LAW, BUT SLIP AND FALL CASES LEAD THE PACK.

 

THE FOLLOWING SUMMARIES FROM 2015 ILLUSTRATE DEFENSE FAILURES OF PROOF ON ONLY TWO ISSUES (OF MANY):  (1) NOTICE OF THE DANGEROUS CONDITION; AND/OR (2) CREATION OF THE DANGEROUS CONDITION.

 

EACH SUMMARY IS PRECEDED BY A QUOTATION FROM THE CASE, IN A BLUE FONT, WHICH SUCCINCTLY STATES THE ISSUE.

 

THE VERY LAST TWO SUMMARIES BELOW (PREFACED BY QUOTATIONS IN A RED FONT) REPRESENT THE RARE SUCCESSFUL DEFENSE MOTIONS IN THIS AREA.

 

 

CASE 1

 

"In support of the motion, the defendant failed to submit evidence sufficient to demonstrate that it did not engage in any snow removal work while the snow was falling and that it did not create the alleged hazardous condition that proximately caused the plaintiff to fall ... . The defendant could not satisfy its initial burden as the movant for summary judgment merely by pointing to gaps in the plaintiff's case ...". 

 

 

Failure to Affirmatively Demonstrate Snow Removal Efforts Did Not Create the Dangerous Condition in a Slip and Fall Case Precluded Summary Judgment Pursuant to the "Storm in Progress" Doctrine

 

In a slip and fall case, the Second Department determined defendant was not entitled to summary judgment pursuant to the "storm in progress" doctrine because it did not affirmatively demonstrate it did not create the dangerous condition by engaging in snow removal during the storm.  The court explained the relevant law:

 

"Under the storm in progress' rule, a property owner will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'" ... . "However, once a property owner elects to engage in snow removal activities, the owner must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm" ... .

 

Here, the defendant failed to establish, prima facie, that it was entitled to judgment as a matter of law dismissing the complaint based on the storm in progress rule. In support of the motion, the defendant failed to submit evidence sufficient to demonstrate that it did not engage in any snow removal work while the snow was falling and that it did not create the alleged hazardous condition that proximately caused the plaintiff to fall ... . The defendant could not satisfy its initial burden as the movant for summary judgment merely by pointing to gaps in the plaintiff's case ... . Harmitt v Riverstone Assoc, 2014 NY Slip Op 09105, 2nd Dept 12-31-14

 

 

CASE 2

 

"Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing, inter alia, that it did not create the alleged hazardous condition ...".

 

Question of Fact Whether Defendant's Snow Removal Efforts Created Dangerous Condition (Black Ice)

 

The Second Department determined there was a question of fact whether the defendant had created the dangerous condition (black ice) on its property by its snow removal efforts:

 

A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it ... . Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing, inter alia, that it did not create the alleged hazardous condition ... .

 

In support of its motion, the defendant failed to eliminate all triable issues of fact as to whether the patch of black ice upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts in the days prior to the accident ... . Smith v New York City Hous Auth, 2015 NY Slip Op 00355, 2nd Dept 1-14-15

 

 

CASE 3

 

"To meet its initial burden on the issue of lack of constructive notice, the 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 ...".

 

Defendant Did Not Demonstrate the Absence of Constructive Notice of the Condition Alleged to Have Caused Plaintiff to Fall--Defendant Therefore Not Entitled to Summary Judgment

 

The Second Department determined defendant in a slip and fall case was not entitled to summary judgment because it did not demonstrate its lack of constructive notice of the condition (glass debris):

 

A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it ... . "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it" ... . "To meet its initial burden on the issue of lack of constructive notice, the 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 did not proffer any evidence demonstrating when the area where the plaintiff fell was last cleaned or inspected prior to the plaintiff's accident and, thus, failed to eliminate all triable issues of fact with regard to their contention that they lacked constructive notice of the glass debris ... . The defendants' failure to establish their prima facie entitlement to judgment as a matter of law required the denial of their motion, regardless of the sufficiency of the plaintiff's opposition papers ... . Santiago v HMS Host Corp, 2015 NY Slip Op 01437, 2nd Dept 2-18-15

 

 

 

CASE 4

 

"Here, [defendant] failed to establish its prima facie entitlement to judgment as a matter of law. [Defendant] failed to demonstrate that it did not undertake to remove snow and ice during or immediately after the storm, and failed to show that any such efforts on its part did not create or exacerbate the alleged icy condition ...

 

Defendant Seeking Summary Judgment Under the Storm in Progress Rule Must Demonstrate It Did Not Undertake Snow Removal During or Immediately After the Storm and Did Not Create or Exacerbate the Dangerous Condition

 

The Second Department, in denying defendant's (Happy Nails') motion for summary judgment, explained the analytical criteria for the "storm in progress" defense to a slip and fall case. Here the defendant failed to demonstrate it did not undertake snow removal efforts and did not create or exacerbate the dangerous condition during or immediately after the storm:

 

Under the storm-in-progress rule, a property owner or tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm, or on an abutting public sidewalk that it has a statutory duty to clear, " until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'" ... . However, once a landowner or a tenant in possession elects to engage in snow removal, it is required to act with "reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm" ... . Thus, New Happy Nails may be held liable for the allegedly hazardous condition on the sidewalk if it undertook snow and ice removal efforts during or immediately after the storm that made the naturally occurring condition more hazardous ... .

 

Here, New Happy Nails failed to establish its prima facie entitlement to judgment as a matter of law. New Happy Nails failed to demonstrate that it did not undertake to remove snow and ice during or immediately after the storm, and failed to show that any such efforts on its part did not create or exacerbate the alleged icy condition ... . Fernandez v City of New York, 2015 NY Slip Op 01410, 2nd Dept 2-18-15

 

 

 

CASE 5

 

"Here, the defendant failed to eliminate all triable issues of fact as to whether the black ice condition upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts ...". 

 

Although Defendant Was Not Responsible for the Pedestrian Ramp, There Was a Question of Fact Whether Defendant's Snow Removal (from the Ramp) Created the Dangerous Condition

 

The Second Department determined a question of fact had been raised about whether defendant is liable for a slip and fall on a pedestrian ramp.  Although, by virtue of a city regulation, defendant was not responsible for the ramp, there was a question whether defendant's snow-removal created the dangerous condition (black ice):

 

...[T]he defendant established, prima facie, that the area in which the plaintiff alleged that she slipped and fell was part of a pedestrian ramp, for which it was not responsible (see Administrative Code of City of NY § 7-210). However, a property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm ... . Here, the defendant failed to eliminate all triable issues of fact as to whether the black ice condition upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts ... . Herskovic v 515 Ave I Tenants Corp, 2015 NY Slip Op 00334, 2nd Dept 1-14-15

 

 

 

CASE 6

 

"To meet its burden on the issue 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 ... . Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice ...".

 

Summary-Judgment Proof Requirements for a Defendant in a Slip and Fall Case Explained (Again)--Not Met Here

 

The Second Department, reversing Supreme Court, again stated the summary-judgment proof requirements for a defendant in a slip and fall case:

 

In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition ... . To constitute constructive notice, a dangerous condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it ... . To meet its burden on the issue 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" ... . Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice ... . Arcabascia v We"re Assoc Inc, 2015 NY Slip Op 01595, 2nd Dept 2-25-15

 

 

 

CASE 7

 

"To meet their burden on the issue of lack of constructive notice, the defendants were required to offer some evidence as to when the accident site was last cleaned or inspected prior to the injured plaintiff's fall ... . Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice ...". 

 

Proof of General Cleaning Procedures Not Sufficient for Summary Judgment to Defendant in a Slip and Fall Case

 

In a slip and fall case, reversing Supreme Court, the Second Department explained (once again) that proof of general cleaning procedures (as opposed to proof when the area in question was last inspected or cleaned) is not sufficient to warrant summary judgment to the defendant:

 

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 did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it ... . To meet their burden on the issue of lack of constructive notice, the defendants were required to offer some evidence as to when the accident site was last cleaned or inspected prior to the injured plaintiff's fall ... . "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" ... . Here, the affidavit of the Safety and Security Manager for the subject IKEA store, which was submitted in support of the defendants' motion, only provided information about the store's general cleaning and inspection procedures concerning the promenade, and did not show when the subject area had last been inspected or cleaned prior to the happening of the accident ... . Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly dangerous condition ... . Furthermore, the defendants failed to establish, prima facie, that the alleged condition was too trivial to be actionable, or was open and obvious and not inherently dangerous as a matter of law. Barris v One Beard St., LLC, 2015 NY Slip Op 02083, 2nd Dept 3-18-15

 

 

 

CASE 8

 

"A tenant has a common-law duty to remove dangerous or defective conditions from the premises it occupies, even though the landlord may have explicitly agreed in the lease to maintain the premises and keep them in good repair ... . Here, [the tenant] failed to establish, prima facie, that it had no duty to maintain the fire escape in a reasonably safe condition ...".

 

Tenant Has Duty to Keep Premises Reasonably Safe

 

The Second Department noted that a tenant (TJX) has an obligation to keep the premises safe even if the landlord agreed in the lease to keep the premises in good repair.  Here it was alleged that water dripping from a fire escape resulted in an icy area on the abutting sidewalk where plaintiff fell:

 

"A tenant has a common-law duty to remove dangerous or defective conditions from the premises it occupies, even though the landlord may have explicitly agreed in the lease to maintain the premises and keep them in good repair" ... . Here, TJX failed to establish, prima facie, that it had no duty to maintain the fire escape in a reasonably safe condition ... . Sellitti v TJX Cos., Inc., 2015 NY Slip Op 02748, 2nd Dept 4-1-15

 

 

CASE 9

 

"Here, the plaintiff did not allege that the landlord's duty was statutory or based on a course of conduct. Thus, to prevail on its motion, [defendant out-of-possession landlord] was required to demonstrate, prima facie, that it had not retained control over the premises, or that it had no contractual duty to remove snow and ice from the area where the plaintiff allegedly slipped and fell. [Defendant] failed to sustain this burden because it failed to submit a copy of the lease between it and the entity that was the tenant of the subject premises at the time of the accident ...".

 

 

Failure to Submit Lease to Show No Contractual Obligation to Remove Ice And Snow Precluded Summary Judgment to Defendant Out-of-Possession Landlord---Evidence First Submitted in Reply Papers Properly Not Considered

 

The Second Department determined defendant out-of-possession landlord was not entitled to summary judgment in a slip and fall case because it did not submit the lease and therefore did not demonstrate the absence of any obligation to remove ice and snow.  The court noted that it could not consider evidence presented for the first time in reply papers:

 

An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct" ... . Here, the plaintiff did not allege that the landlord's duty was statutory or based on a course of conduct. Thus, to prevail on its motion, [defendant] was required to demonstrate, prima facie, that it had not retained control over the premises, or that it had no contractual duty to remove snow and ice from the area where the plaintiff allegedly slipped and fell. [Defendant] failed to sustain this burden because it failed to submit a copy of the lease between it and the entity that was the tenant of the subject premises at the time of the accident ... .  Poole v MCPJF, Inc., 2015 NY Slip Op 03142, 2nd Dept 4-15-15

 

 

 

 

 

 

 

 

 

 

 

 

CASE 10

 

"[Defendant] failed to make a prima facie showing that it lacked constructive notice of the ice condition alleged by the plaintiff. [Defendant] failed to present evidence establishing when it had last cleaned or inspected the area of the walkway where the plaintiff slipped and fell, relative to the time of the accident ...".

 

Evidence of General Cleaning Practices, As Opposed to Evidence When the Area of the Slip and Fall Was Last Inspected and Cleaned, Is Not Sufficient to Demonstrate the Absence of Constructive Notice of the Dangerous Condition

 

The Second Department determined the lessee's motion for summary judgment in a slip and fall case was properly denied.  The lessee, Ban Do, was responsible for snow and ice removal in the area of the fall.  In support of its motion for summary judgment, Ban Do presented only evidence of its general cleaning practices and did not specifically demonstrate when the area was last inspected and cleaned. Therefore Ban Do was unable to demonstrate the absence of constructive notice of the icy condition:

 

Ban Do failed to make a prima facie showing that it lacked constructive notice of the ice condition alleged by the plaintiff. Ban Do failed to present evidence establishing when it had last cleaned or inspected the area of the walkway where the plaintiff slipped and fell, relative to the time of the accident ... . The affidavit of Ban Do's principal established nothing more than Ban Do's general cleaning practices in relation to the walkway at the rear entrance to its store, which was insufficient to demonstrate that it lacked constructive notice of the ice condition on which the plaintiff allegedly slipped and fell ... . Sartori v JP Morgan Chase Bank, N.A., 2015 NY Slip Op 03516, 2nd Dept 4-29-15

 

 

CASE 11

 

 

"Here, the ... defendants, as lessees of the property, established that no statute or ordinance imposed tort liability on them (cf. Administrative Code of City of NY 7-210 [applicable to owners of real property]). However, they failed to make a prima facie showing that there were no efforts to clear the sidewalk on the date of the injured plaintiff's accident or that any snow and ice removal efforts undertaken by them or by persons on their behalf did not exacerbate the hazardous condition which allegedly caused the injured plaintiff to fall ...".

 

The Defendants, Lessees of the Property Abutting the Sidewalk, Demonstrated in their Summary Judgment Motion that there Was No Statute or Ordinance Imposing Liability on Lessees for Failure to Clear Snow and Ice from the Sidewalk, But the Defendants Did Not Affirmatively Demonstrate They Did Not Make the Condition More Hazardous by their Snow Removal Efforts---Therefore the Summary Judgment Motion Must Be Denied Without Reference to the Answering Papers

 

The Second Department determined defendants, who leased the premises abutting a sidewalk in Brooklyn, were not entitled to summary judgment dismissing a "snow and ice" slip and fall complaint. The defendants demonstrated that there was no statute or ordinance imposing tort liability. However the defendants failed to affirmatively demonstrate that their snow removal efforts did not make conditions more hazardous (another example of the need for a defendant bringing a summary judgment motion to address every possible theory of liability):

 

" The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so'" ... . "In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous" ... .

 

Here, the ... defendants, as lessees of the property, established that no statute or ordinance imposed tort liability on them (cf. Administrative Code of City of NY 7-210 [applicable to owners of real property]). However, they failed to make a prima facie showing that there were no efforts to clear the sidewalk on the date of the injured plaintiff's accident or that any snow and ice removal efforts undertaken by them or by persons on their behalf did not exacerbate the hazardous condition which allegedly caused the injured plaintiff to fall ... . Forlenza v Miglio, 2015 NY Slip Op 05639, 2nd Dept 7-1-15

 

 

CASE 12

 

"Here, the deposition testimony ... established, prima facie, that the defendants did not create or have actual notice of the allegedly loose piece of slate on the slate stone landing which allegedly caused the plaintiff Patrick Bergin to fall ... . However, in the absence of any evidence as to when the defendants last inspected the landing before the accident ..., or that the allegedly loose piece of slate on the landing was a latent defect that could not have been discovered upon a reasonable inspection ... , the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly loose piece of slate on the landing ...".

 

Failure to Affirmatively Demonstrate When the Area Where the Slip and Fall Occurred Was Last Inspected and Failure to Affirmatively Demonstrate the Condition Was a "Latent Defect" Precluded Summary Judgment---Defendants Failed to Affirmatively Demonstrate the Absence of Constructive Notice of the Condition

 

The Second Department determined Supreme Court properly denied defendants' motion for summary judgment in a slip and fall case, in another illustration of the need to eliminate every possible theory of recovery in order to be awarded summary judgment.  Here it was alleged plaintiff slipped and fell on a loose piece of slate. Defendants demonstrated the absence of actual notice, but did not present evidence of when the area was last inspected prior to the fall and did not demonstrate the defect was "latent" (which would have demonstrated the absence of constructive notice):

 

"To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the defendants] to discover and remedy it" ... . "When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed" ... . In demonstrating that it lacked constructive notice of a visible and apparent defect, "the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff" slipped and fell ... .

 

Here, the deposition testimony ... established, prima facie, that the defendants did not create or have actual notice of the allegedly loose piece of slate on the slate stone landing which allegedly caused the plaintiff Patrick Bergin to fall ... . However, in the absence of any evidence as to when the defendants last inspected the landing before the accident ..., or that the allegedly loose piece of slate on the landing was a latent defect that could not have been discovered upon a reasonable inspection ... , the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly loose piece of slate on the landing ... . Bergin v Golshani, 2015 NY Slip Op 06103, 2nd Dept 7-15-15

 

 

 

CASE 13

 

"Although the building superintendent testified that he routinely swept the laundry room every morning at 8:00 a.m. and performed daily inspections of the building, including the laundry room, at 11:00 a.m. and 8:00 p.m. each day, mere proof of a set janitorial schedule does not prove that it was followed on the day of the accident, or eliminate the issue of constructive notice in this case ...".

 

Defendant Failed to Demonstrate the Absence of Constructive Notice; Summary Judgment Should Not Have Been Granted.

 

The First Department, over an extensive dissent, determined proof of a janitorial cleaning schedule was not sufficient to demonstrate defendant's lack of notice of a dangerous condition. Defendant's motion for summary judgment should not have been granted:

 

Defendant building owner moved for summary judgment solely on the basis that it had neither actual nor constructive notice of the alleged dangerous condition, a missing drain cover in the building's laundry room. Defendant failed to meet its initial burden of demonstrating that it did not have constructive notice ... . Although the building superintendent testified that he routinely swept the laundry room every morning at 8:00 a.m. and performed daily inspections of the building, including the laundry room, at 11:00 a.m. and 8:00 p.m. each day, mere proof of a set janitorial schedule does not prove that it was followed on the day of the accident, or eliminate the issue of constructive notice in this case ... . The superintendent could not recall whether he had checked the laundry room on the day of the accident or offer any other evidence regarding the last time he inspected the laundry room prior to the accident ... . He explicitly stated that he did know whether the allegedly defective condition existed on that date. Dylan P. v Webster Place Assoc., L.P., 2015 NY Slip Op 07600, 1st Dept 10-20-15

 

 

 

CASE 14

 

"... Valley, as lessee, established that no statute or ordinance imposed tort liability on it. However ... Valley failed to make a prima facie showing that it was free from negligence. Valley did not show that it made no efforts to clear the sidewalk on the date of the injured plaintiff's accident or that any snow and ice removal efforts undertaken by it, or by persons on its behalf, did not exacerbate the hazardous condition which allegedly caused the injured plaintiff to fall ...".

 

To Prevail on a Motion For Summary Judgment, Lessee Must Show Both (1) the Absence of a Statute or Ordinance Imposing Tort Liability for Failure to Remove Ice and Snow from a Sidewalk and (2) the Lessee Did Not Create or Exacerbate the Condition by Its Snow Removal Efforts

 

The Second Department noted that defendant-lessee's motion for summary judgment in a sidewalk slip and fall case was properly denied. Although the lessee (Valley) demonstrated no statute or ordinance imposed a duty to remove snow and ice from the sidewalk, it did not demonstrate that it was free from negligence by showing it did not create or exacerbate the condition with snow removal efforts:

 

The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so'" ... . "In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous" ... . 

 

... Valley, as lessee, established that no statute or ordinance imposed tort liability on it. However ... Valley failed to make a prima facie showing that it was free from negligence. Valley did not show that it made no efforts to clear the sidewalk on the date of the injured plaintiff's accident or that any snow and ice removal efforts undertaken by it, or by persons on its behalf, did not exacerbate the hazardous condition which allegedly caused the injured plaintiff to fall ... . Bleich v Metropolitan Mgt., LLC, 2015 NY Slip Op 07808, 2nd Dept 10-28-15

 

 

 

CASE 15

 

"Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition. Neither the affidavit of the defendant's operations manager, nor the deposition testimony of the defendant's asset protection manager established when the area where the plaintiff fell, or any of the entrances to the store, were last inspected in relation to the plaintiff's fall."

 

Tracked In Water, Failure to Demonstrate When Area Last Inspected Precluded Summary Judgment

 

The Second Department, reversing Supreme Court, determined defendant's failure to demonstrate when the area where the slip and fall occurred was last inspected precluded summary judgment in defendant's favor. Evidence of general cleaning procedures is not enough to demonstrate a lack of constructive notice of an alleged dangerous condition (tracked in water here):

 

While a "defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain" ... , a defendant may be held liable for an injury proximately caused by a dangerous condition created by water tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action ... .

 

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 ... .

 

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition. Neither the affidavit of the defendant's operations manager, nor the deposition testimony of the defendant's asset protection manager established when the area where the plaintiff fell, or any of the entrances to the store, were last inspected in relation to the plaintiff's fall.  Milorava v Lord & Taylor Holdings, LLC, 2015 NY Slip Op 08390, 2nd Dept 11-18-15

 

 

 

CASE 16

 

 

"...If a storm is ongoing, and a property owner elects to remove snow, it must do so with reasonable care or it could be held liable for creating or exacerbating a natural hazard created by the storm ... . In such an instance, a property owner moving for summary judgment in a slip and fall case must demonstrate in support of its motion that the snow removal efforts it undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall ...".

 

Because Property-Owner-Defendants Undertook Snow Removal Effort, Their Failure to Affirmatively Demonstrate Those Efforts Did Not Created the Hazardous Condition Required Denial of Their Motion for Summary Judgment

 

The Second Department noted that, although a property owner is under no duty to remove snow and ice during a storm, if snow removal efforts are made, in moving for summary judgment, the property owner (here Chestnut Oaks) must affirmatively demonstrate the snow removal efforts did not create a hazardous condition. Chestnut Oaks' failure to so demonstrate required denial of the motion:

 

As the proponents of a motion for summary judgment, the Chestnut Oaks defendants had the burden of establishing, prima facie, that they neither created the ice condition nor had actual or constructive notice of the condition ... . "Under the so-called storm in progress' rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm" ... . A person responsible for maintaining property is not under a duty to remove ice and snow until a reasonable time after the cessation of the storm ... . However, if a storm is ongoing, and a property owner elects to remove snow, it must do so with reasonable care or it could be held liable for creating or exacerbating a natural hazard created by the storm ... . In such an instance, a property owner moving for summary judgment in a slip and fall case must demonstrate in support of its motion that the snow removal efforts it undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall ... . DeMonte v Chestnut Oaks at Chappaqua, 2015 NY Slip Op 08800, 2nd Dept 12-3-15

 

 

 

 

CASE 17

 

"The defendant failed to set forth when the subject platform was last inspected or what it looked like prior to the accident, and it failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition ...".

 

Defendant's Failure to Demonstrate When the Area Was Last Inspected and Cleaned Required Denial of Defendant's Motion for Summary Judgment

 

Reversing Supreme Court, the Second Department determined defendant transit authority did not demonstrate a lack of constructive notice of a slip and fall hazard because it did not present evidence of when the area was last cleaned and inspected or what the area looked like prior to the slip and fall:

 

A defendant property owner 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 hazardous condition nor had actual or constructive notice of its existence ... . " To meet its initial burden on the issue of lack of constructive notice, the 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, viewing the evidence in the light most favorable to the plaintiff, as the nonmoving party, the defendant failed to establish its prima facie entitlement to judgment as a matter of law ... . The defendant failed to set forth when the subject platform was last inspected or what it looked like prior to the accident, and it failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition ... . Roman v New York City Tr. Auth., 2015 NY Slip Op 08820,  2nd Dept 12-2-15

 

 

 

CASE 18

 

"Although the defendant presented evidence that it neither created, nor had actual notice of, the alleged condition, it failed to demonstrate that it did not have constructive notice of the alleged condition, as the defendant failed to tender any evidence establishing when the subject area was last inspected and cleaned prior to the accident ...".

 

Defendant Did Not Demonstrate Plaintiff Did Not Know the Cause of Her Fall ad Did Not Demonstrate a Lack of Constructive Notice of the Dangerous Condition; Defendant's Motion for Summary Judgment Should Not Have Been Granted

 

The Second Department determined defendant's motion for summary judgment in a slip and fall case should not have been granted. Plaintiff's testimony she "felt" liquid on the floor was sufficient evidence plaintiff was aware of the cause of her fall. And defendant failed to demonstrate a lack of constructive notice of the dangerous condition:

 

Although the defendant presented evidence that it neither created, nor had actual notice of, the alleged condition, it failed to demonstrate that it did not have constructive notice of the alleged condition, as the defendant failed to tender any evidence establishing when the subject area was last inspected and cleaned prior to the accident ... . Korn v Parkside Harbors Apts., 2015 NY Slip Op 09071, 2nd Dept 12-9-15

 

 

CASE 19

 

"In support of their motion, the defendants failed to demonstrate, prima facie, a lack of constructive notice of the allegedly hazardous condition that caused the subject accident, as they failed to submit any evidence as to when, prior to the accident, the area of the parking lot where the alleged slip and fall occurred, was last inspected or cleaned relative to the accident ...".

 

Failure to Demonstrate When Area Was Last Cleaned or Inspected Required Denial of Defendants' Motion for Summary Judgment

 

The Second Department, reversing Supreme Court, determined summary judgment should not have been granted to defendants in a slip and fall case. The plaintiff alleged she slipped on a patch of oil in a parking lot. The defendants failed to demonstrate when the area had last been inspected or cleaned:

 

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 accident ... . "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" ... .

 

In support of their motion, the defendants failed to demonstrate, prima facie, a lack of constructive notice of the allegedly hazardous condition that caused the subject accident, as they failed to submit any evidence as to when, prior to the accident, the area of the parking lot where the alleged slip and fall occurred, was last inspected or cleaned relative to the accident ... . Bruni v Macy's Corporate Servs., Inc., 2015 NY Slip Op 09238, 2nd Dept 12-16-15

 

 

 

 

 

CASE 20

 

"The defendant failed to establish, prima facie, that the subject staircase was not in a defective condition and that she did not create the alleged hazardous condition or have actual or constructive notice of such condition ... . Since the defendant failed to meet her burden as the movant, it is not necessary to review the sufficiency of the plaintiffs' opposition papers."

 

DEFENDANT FAILED TO AFFIRMATIVELY ADDRESS EVERY THEORY OF LIABILITY RAISED BY THE COMPLAINT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE.

 

The Second Department, reversing Supreme Court, determined summary judgment should not have been granted to the defendant in this slip and fall case. The plaintiffs had sufficiently identified the cause of the fall (uneven floor). Defendant failed to affirmatively demonstrate the uneven floor was not a dangerous condition, and further failed to affirmatively demonstrate she had no notice of the condition and she did not create the condition. [Once again, a defendant must affirmatively address all possible theories of recovery in a motion for summary judgment.]:

 

To impose liability upon a defendant for a plaintiff's injuries, there must be evidence showing the existence of a dangerous or defective condition, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time ... . Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the circumstances of each case, and is generally a question of fact for the jury ... . The defendant failed to establish, prima facie, that the subject staircase was not in a defective condition and that she did not create the alleged hazardous condition or have actual or constructive notice of such condition ... . Since the defendant failed to meet her burden as the movant, it is not necessary to review the sufficiency of the plaintiffs' opposition papers. Davis v Sutton, 2016 NY Slip Op 00923, 2nd Dept 2-10-16

 

 

CASE 21

 

"The defendants failed to establish, prima facie, that the parking lot was adequately illuminated ... . Contrary to the defendants' further contention, the plaintiff was able to identify what had caused her to fall ... . Additionally, the defendants failed to establish, prima facie, that they did not create the alleged hazardous condition of the parking lot or have actual or constructive notice thereof ... . Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the plaintiff's opposition papers ...".

 

DEFENDANTS' FAILURE TO DEMONSTRATE AREA WHERE PLAINTIFF FELL WAS ADEQUATELY ILLUMINATED, AND FAILURE TO AFFIRMATIVELY DEMONSTRATE DEFENDANTS DID NOT CREATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION, REQUIRED DENIAL OF DEFENSE MOTION FOR SUMMARY JUDGMENT.

 

The Second Department, reversing Supreme Court, determined defendant property owners were not entitled to summary judgment in this slip and fall case. The defendants had directed plaintiff to a parking lot as a smoking area (where plaintiff fell). Therefore, defendants were obliged to make sure the parking lot was adequately illuminated. The defendants' failure to affirmatively demonstrate the area was adequately illuminated, and their failure to demonstrate they did not create the dangerous condition or have actual or constructive notice of it required denial of their summary judgment motion. [Yet another example of the necessity of affirmatively addressing every possible theory of recovery available to a plaintiff in a defense summary judgment motion.]:

 

... [H]aving directed guests to use the rear parking lot as a smoking area, they had a duty to provide adequate illumination ... . The defendants failed to establish, prima facie, that the parking lot was adequately illuminated ... . Contrary to the defendants' further contention, the plaintiff was able to identify what had caused her to fall ... . Additionally, the defendants failed to establish, prima facie, that they did not create the alleged hazardous condition of the parking lot or have actual or constructive notice thereof ... . Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the plaintiff's opposition papers ... . Steed v MVA Enters., LLC, 2016 NY Slip Op 00960, 2nd Dept 2-10-16

 

 

CASE 22

 

"Barber [ a maintenance worker] averred that he had inspected the area where the plaintiff alleged that she fell approximately 10 to 15 minutes prior to the accident and observed no water in the area at that time. He further averred in his affidavit that at no point prior to the accident did he ever receive any complaints of any kind concerning the area where the plaintiff allegedly fell."

 

Defendant Entitled to Summary Judgment--No Notice of Wet Condition Where Plaintiff Fell

 

Reversing Supreme Court, the Second Department determined the defendant was entitled to summary judgment in a slip and fall case. The defendant demonstrated it did not have actual or constructive notice of the condition (wet floor). An affidavit by a member of the maintenance crew stated that the area where plaintiff fell had been inspected 10 to 15 minutes before the fall and there had been no complaints about a wet condition. The court explained the relevant law:

 

The owner or possessor of property has a duty to maintain his or her property "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ... . 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 did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition 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, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" ... .

 

The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that it neither created nor had actual or constructive notice of the condition alleged by the plaintiff to have caused the accident. In support of its motion, the defendant relied upon, among other things, the affidavit of Charles Barber, a member of the maintenance crew at the subject store on the date of the accident. Barber averred that he had inspected the area where the plaintiff alleged that she fell approximately 10 to 15 minutes prior to the accident and observed no water in the area at that time. He further averred in his affidavit that at no point prior to the accident did he ever receive any complaints of any kind concerning the area where the plaintiff allegedly fell. Mehta v Stop & Shop Supermarket Co., LLC, 2015 NY Slip Op 05450, 2nd Dept 6-24-15

 

 

 

CASE 23

 

"Sailsman [defendant] made a prima facie showing that his property is a two-family home in which he resides, not subject to liability pursuant to Administrative Code of City of NY § 7-210 (b), and that his voluntary snow removal efforts did not create or exacerbate the alleged hazardous condition on the sidewalk ... . Sailsman testified that the day before the accident, he removed the snow and ice from the sidewalk and applied enough salt to completely melt the ice, and provided a neighbor's affidavit confirming that the sidewalk was clear and safe to walk on, as well as photographs taken shortly after the accident."

 

Rare Case Where Defendant Submitted Sufficient Evidence to Demonstrate Snow Removal Efforts Did Not Create or Exacerbate a Dangerous Condition;, Defendant's Motion for Summary Judgment Should Have Been Granted

 

The First Department, reversing Supreme Court, determined defendant (Sailsman) was entitled to summary judgment in a slip and fall case. Defendant demonstrated that his snow removal efforts did not create or exacerbate a dangerous condition. [This case is noteworthy because the vast majority of defendants'  motions for summary judgment in similar cases are denied for failure to present the necessary evidence.]:

 

Sailsman made a prima facie showing that his property is a two-family home in which he resides, not subject to liability pursuant to Administrative Code of City of NY § 7-210 (b), and that his voluntary snow removal efforts did not create or exacerbate the alleged hazardous condition on the sidewalk ... . Sailsman testified that the day before the accident, he removed the snow and ice from the sidewalk and applied enough salt to completely melt the ice, and provided a neighbor's affidavit confirming that the sidewalk was clear and safe to walk on, as well as photographs taken shortly after the accident. Montiel v Sailsman, 2015 NY Slip Op 08968, 1st Dept 12-8-15