No Notice Means No Recovery in NY
In Barreto v. 750 Third Owner, LLC, 2021 NY Slip Op 02868 (1st Dept. 2021), the plaintiff slipped and fell in a commercial building’s lobby due to rainwater. Defendants argued that they had no constructive or actual notice of the defect on the floor because a record search did not show any complaints about water on the lobby floor prior to the accident. The defense further argued that a complaint made one year prior to the accident is insufficient to establish constructive notice.
Further, plaintiff testified that it was sunny when she left for lunch, that it did not start raining that day until about five minutes before she reentered the building, and that she did not see the water until after she fell (see Perez v River Park Bronx Apts., Inc., 168 AD3d 465, 466 [1st Dept 2019]). Thus, the defendants could not have been charged with leaving rainwater on the lobby floor because an insufficient amount of time had passed to hold them accountable as such. A general awareness that the lobby floor could become wet during inclement weather is insufficient to raise a triable issue of fact as to whether defendants had constructive notice of the specific condition that caused plaintiff’s fall (Jones v Icahn Assoc. Corp., 173 AD3d 546, 546-547 [1st Dept 2019]).
The First Department is known for being plaintiff-friendly, but agreed with the defense here. This decision shows that if a property owner or tenant has shown in evidence that there were no prior warnings about a slippery or dangerous substance on its property, and if it cannot be shown that the dangerous or slippery substance was on the property for a definitive amount of time, then it will be difficult to attach constructive or actual notice of the condition to the property owner or tenant.
Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions.