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Affidavit of Restaurant Manager Insufficient to Thwart Constructive Notice Claim (NY)

February 7, 2018

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In <em><a href="">Lewis v Carrols LLC</a></em>, the Fourth Department recently discussed the practical obstacles faced by a defendant in showing that it neither created, nor had notice of, a defective condition.
The claim arose from injuries suffered by plaintiff when she allegedly slipped on water in the vestibule of a restaurant owned by defendant. In plaintiff's complaint and bill of particulars, she alleged that defendants either created the dangerous condition or had actual or constructive notice of it. The Supreme Court denied defendant’s motion to dismiss to dismiss the complaint in its entirety, and defendant appealed.
On appeal, the Fourth Department noted that defendant submitted evidence that it was raining on the date of loss, and that any water accumulation in the vestibule was a "result of the weather conditions as opposed to an employee spoiling anything in the floor." Accordingly, the Fourth Department held that defendant did not create the condition as a matter of law, and the Supreme Court erred in denying that part of defendant’s motion.  The defendant also provided an affidavit from the restaurant manager establishing that she did not personally observe any dangerous condition when she inspected the vestibule approximately thirty minutes before plaintiff’s accident. However, defendants failed to submit evidence that 1) other employees did not observe water on the floor or 2) that there were no complaints about the allegedly wet floor prior to plaintiff’s accident. Accordingly, the Fourth Department held that defendant failed to establish that lacked actual notice of the allegedly dangerous condition, as a matter of law.
In its discussion of constructive notice, the Court noted that defendant “cannot satisfy its burden merely by pointing out gaps in the plaintiff’s case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident.” In addition to submitting the restaurant manager’s testimony that she inspected the area approximately thirty minutes prior to plaintiff’s accident, defendant also submitted the testimony of plaintiff’s husband, another restaurant employee. In contrast to the manager’s testimony, plaintiff’s husband testified that the manager was not even present in the restaurant at the time of the accident. He also testified that the area had not been inspected for at least five hours prior to the plaintiff’s accident. While defendant tried to argue that the husband’s contrary testimony was not credible as a matter of law, the Fourth Department instead felt that this testimony created as issue of fact as to when the vestibule had last been inspected.
Overall, this decision is interesting because, while defendant proved that it did not create the hazardous condition as a matter of law, the defendant’s own motion showed the existence of issues of fact regarding notice. The restaurant manager’s affidavit indicated that she inspected the area just half an hour prior to the accident. However, defendants also submitted a contradictory affidavit from plaintiff’s husband. Accordingly the Fourth Department held that that defendants failed to prove it lacked actual and constructive notice of the dangerous condition as a matter of law.
This decision highlights the uphill battle defendants face in New York.  This defendant provided an affidavit a restaurant manager, who inspected the subject area 30 minutes before the accident -- and this was not enough to avoid summary judgment.  Thanks for Evan King for his contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.

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