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Defendant Inadvertently Creates Question of Fact by Producing Conflicting Witnesses (NY)

February 7, 2018

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In New York City, where a plaintiff is injured due to a slip and fall within a residential apartment building, a defendant must show through admissible evidence the last time the area was cleaned and inspected prior to the accident. However, it appears that in some instances, this alone is not enough.
In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2018/02/Hamilton-v.-Naica-Housing-Development.pdf">Hamilton v. Naica Housing Development</a>, </em>decided on February 6, 2018, the First Dept. upheld the lower court’s denial of the property owners' motion for summary judgment. The property owner had produced two witnesses for a deposition. One witness, the building superintendent, testified that he personally cleaned and inspected the area prior to the accident and did not see any wet substances. The same witness stated that in the event of a wet condition, wet floor signs would be placed immediately, however that had not occurred in this case.
The second witness, a housekeeper for the building, who was present at the time of the accident, testified that he saw a wet floor sign in the area of plaintiff’s fall, but that he did not know who placed it there and did not do so himself. The defendant attempted to overcome the difference in testimony by arguing that even if the defendant owner did have notice of a condition between when it was cleaned and the accident, they adequately warned plaintiff by placing a wet floor sign.
It is evident in making the motion that the defendant thought both evidence of the last inspection and placement of a warning sign would be sufficient to show that they acted reasonably.  However, the Court found that this different testimony from the defendant’s witnesses created issues of fact, namely as to whether the defendant did have notice of a condition and failed to remedy it. Further, the Court found questions of fact as to whether placing a wet floor sign is sufficient to warn or protect from a known dangerous condition, where that condition had not been cleaned up.
This decision emphasizes the importance of having witnesses prepared, and their testimony in sync with each other, to eliminate holes in the defense case.  Now, not only does this plaintiff have a pathway to trial, but he has an added advantage of facing conflicting defense witnesses.  Thanks to Dana Purcaro for her contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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