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Defendant’s Burden in Slip and Fall Cases – Gairy v. 3900 Harper Ave., LLC, No. 2016-01951, 2017 WL 355973 (N.Y. App. Div. Jan. 25, 2017)

February 2, 2017 • Posted By Devika P. Kapoor • Insurance Coverage

The Appellate Division, Second Department’s recent ruling on a property owner’s motion for summary judgment highlights the importance of keeping meticulous inspection records relating to the maintenance of property and reports regarding latent defects or the lack thereof.  On January 25, 2017, the Appellate Division issued a Decision and Order upholding the Kings County Supreme Court’s decision denying defendant-owner and property manager’s motion for summary judgment against the plaintiff, who slipped and fell when a step on an exterior concrete staircase gave way and broke underneath her.  

The court ruled that a defendant moving for summary judgment in a slip-and-fall case bears the initial burden of establishing that it did not create the alleged dangerous or defective condition, or that it did not have either actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.  In order for a moving defendant to meet this burden, the defendant may offer evidence as to when the accident site was last cleaned or inspected prior to the incident, or show that the defect was latent.  A latent defect is one which is not discoverable upon reasonable inspection. 

In this case, defendant was unable to offer any evidence of its last inspection or evidence indicating that the condition was a latent defect.  Therefore, the court found that defendant failed to establish prima facie that it lacked constructive notice of the defective condition.  Furthermore, a defendant cannot not rely on affidavits which were submitted for the first time with their reply papers.  The summary judgment motion was denied as result of defendant’s inability to meet its burden.