Wade Clark Mulcahy LLP

<p style="text-align: justify;">We have previously reported on the importance of good record keeping to help preserve a potential notice defense in New York premises liability cases. In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/03/Buffalino-v.-XSport-Fitness-1.pdf">Buffalino v. XSport Fitness</a>,</em> the Appellate Division, Second Department recently addressed these issues in a case in which the plaintiff was injured when the arm and foot pedal of an elliptical machine she was using came loose. She alleged that the gym owners had notice of the dangerous condition. The trial court disagreed and awarded summary judgment to the gym.</p>
<p style="text-align: justify;">On appeal, the Second Department observed that “[T]o meet its initial burden on the issue of lack of constructive notice of an alleged defective condition, a defendant must offer evidence as to when the subject area was last inspected relative to the time when the incident occurred. It added that when a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.</p>
<p style="text-align: justify;">The Second Department reversed, holding that the defendant failed to provide “specific” evidence as to when the elliptical machine was last inspected, and that “mere references” to the testing of the equipment is insufficient to establish lack of constructive notice. The court also held that the defendant failed to establish that the dangerous condition was latent.</p>
<p style="text-align: justify;">This decision serves as a reminder that as a commercial property owner, it is important to maintain inspection and maintenance records as the failure to do so could result in the loss of a potentially significant defense in a premises liability lawsuit. General testimony as to inspections, absent supporting documents, will not carry the day in court.</p>
<p style="text-align: justify;">Thank you to Corey Morgenstern for his contribution to this post. Please contact <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.</p>