FAILED TO SHOW LACK OF CONSTRUCTIVE NOTICE OF OILY CONDITION’S EXISTENCE
After MA fell on an “oily substance” which was on AAC Cross County Mall’s property, the latter moved to dismiss the case alleging that it didn’t create the condition nor that had notice “for a sufficient length of time to discover and remedy it."
When the Westchester County Supreme Court granted the Mall’s request, MA appealed. And on its review of the dispute the Appellate Division, Second Department, thought the Mall failed to meet its “burden of proof.” When making such a motion, a property owner is required to show when the area in dispute was last cleaned or inspected. And references to “general cleaning practices,” without more, are not legally sufficient.
Given the Mall's conclusory assertions, the AD2 thought that defendant failed to demonstrate its lack of constructive notice, as required by law, and reversed the lawsuit's dismissal. (As for the contention that it was an "open and obvious" condition, that claim only raised a "comparative negligence" question which was to best addressed at trial, and wasn't enough to defeat AA's case on motion practice.)
MA-ma mia! Now that's some slip-up.
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