DID STORE HAVE NOTICE OF AN UNSAFE CONDITION?
Back in January 2018, A.M. allegedly slipped and fell on some ice while walking in front of a Manhattan Westerly Natural Food Market, and filed suit seeking to recovery damages for alleged personal injuries sustained.
After the Nassau County Supreme Court denied the store’s request (made by motion for summary judgment) for pre-trial dismissal of the litigation, an appeal was filed.
The Appellate Division, Second Department, noted that while an owner or party in possession of real property has a duty to maintain its premises in “a reasonably safe condition,” a negligence case can be dismissed if the movant can show that it “neither created the alleged defective condition nor had actual or constructive notice of its existence.”
But because the store failed to provide specifics as to its employees’ actions on the date in question, and neglected to submit any evidence as to when the sidewalk was “last cleaned or inspected,” the AD2 agreed that the store failed to meet is burden of proof (that it lacked constructive notice of the existence of sidewalk ice) in this instance.
Additionally, since it was unclear whether A.M. fell due to an ice patch, or whether he came into contact with a scaffolding pole or tripped on a supporting block of wood, the AD2 was also of the view there were “issues of fact as to the proximate cause of plaintiff’s accident.”
Was that a lost cause?
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DECISION