On 28 June 2004 at 8 a.m., plaintiff slipped and fell on water located on the sixth floor bathroom of defendant-one, a property owned and managed by defendant-two. A New York Injury Lawyer said the plaintiff alleges that the dangerous water condition which caused his fall and resultant injuries was due to the defendants’ negligence.
On 7 September 2005, plaintiffs commenced the instant personal injury action.
The complaint contains forty-two allegation of fact supporting plaintiff’s cause of action for personal injuries from the slip and falland his wife’s derivative claim for the loss of his services, consortium and society.
The defendants’ answer, as amended, contains six affirmative defenses, viz: plaintiff’s injuries were caused in whole or in part by the plaintiff’s own negligence; the court lacks personal jurisdiction over the defendants; plaintiff was engaged in activity which he knew to be hazardous and the plaintiff assumed the risk inherent in such activity; the complaint fails to state a cause of action for which relief may be granted; if the defendants are found liable, such liability is less than 50% of the total liability of all persons who may be found liable, and therefore the defendants’ liability shall be limited to their equitable share; any past or future costs or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care of rehabilitative services, loss of earnings or other economic loss, has been or will, with reasonable certainty, be replaced or indemnified in whole or in part from a collateral source.
On 18 June 2007, by notice of motion filed, a Bronx Personal Injury Lawyer said the defendants jointly move for an order granting summary judgment dismissing the complaint on the basis that they had no actual or constructive notice of the allegedly dangerous condition which caused plaintiff’s injury and they neither caused nor created the condition.
The plaintiff and his wife oppose.
The Court’s Ruling:
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. The burden is on the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. A Brooklyn Personal Injury Lawyer said once the moving party has established entitlement to summary judgment, to defeat the motion, the opposing party must raise triable issues of fact. A failure to make that showing requires the denial of the summary judgment motion, regardless of the sufficiency of the opposing papers.
To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition.
A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected.
On the defendants’ motion for summary judgment to dismiss the complaint based on lack of notice, the defendant is required to make a prima facie showing affirmatively establishing that he neither created nor had actual or constructive notice of the dangerous condition that caused plaintiff’s accident.
The defendants argue that the plaintiff has failed to establish that the defendants had either actual or constructive notice of the dangerous condition. The movants, citing one case, contend that the burden is on a party opposing a summary judgment motion to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests. However, such statement of law is incorrect because it is taken out of context and it does not apply to the case at bar.
In the cited case, the New York State Court of Appeals noted that where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action. Therefore, it is the moving party who 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 for a sufficient length of time to discover and remedy it. Only after the moving defendant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff’s opposition.
In the cited case, the court found that the moving party had met its initial burden and that the burden had shifted to the party opposing a summary judgment motion to show facts sufficient to require trial of any issue of fact.
Hence, it was not plaintiff’s burden in opposing the motion for summary judgment to demonstrate, as defendants urge, that the defendants had actual or constructive notice of the unsafe condition. Rather, it was the responsibility of defendant to establish the absence of notice as a matter of law. In an attempt to do so, the defendants allege that plaintiff cannot establish causation between the defendants conduct and his injury because he did not know what caused him to fall. Defendants contend that plaintiff’s claim that the defendants caused his injury is based on sheer speculation. However, the defendants’ assertion is unsupported by the evidence on record. The plaintiff testified at his deposition that at the moment he fell he did not know what caused his foot to slip, but then he knew it was water because when he got up he looked around him and saw the water.
The court is required to look at the facts in the light most favorable to the party opposing the motion for summary judgment and to accept as true the evidence presented by the non-moving party.
In sum, the defendants’ claim that the plaintiff did not know what caused him to fall is incorrect.
Moreover, the defendants failed to present sufficient evidence to show that they had neither created nor had actual or constructive notice of the dangerous condition in the bathroom. The defendants did not offer testimony of anyone with personal knowledge of the bathroom’s condition on the morning of the accident or the previous day. There was also no testimony offered from the maintenance worker who cleaned the bathroom prior to the accident to establish the absence of actual or constructive knowledge of the water condition. The defendants also did not provide the testimony of the person in charge of the complaints department. Such evidence may have been probative in showing that the presence of excessive amounts of water on the accident date was not a recurring condition. Instead, the only evidence provided by the defendants was the deposition testimony of the person who started working one and a half hour after the accident occurred. Such person only testified as to the general bathroom cleaning and maintenance practice that existed in the property and not as to what he actually observed or did prior to the accident.
All evidence presented fall short of satisfying the defendants’ burden on its motion for summary judgment.
Here, defendants’ motion papers have not shown, as they must in order to obtain summary judgment, that they neither created the dangerous condition nor had actual or constructive notice of the hazardous condition that caused the plaintiff’s injury.
As a result, by reason of the fact that defendants failed to make a prima showing of their entitlement to dismissal, the court need not address the sufficiency of the opposing papers. The defendants’ motion for summary judgment dismissing the complaint is denied.
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