Wade Clark Mulcahy LLP

Recently, in Vazquez v. Fordham University, 2024 N.Y. Slip Op. 01124, the Second Department ruled on a plaintiff’s appeal, after the lower court granted summary judgment in favor of premises owner defendant. Plaintiff alleged a trip and fall, where she fell down a flight of steps, which she attributed to a light outage which prevented her from seeing the unevenness of the steps she was traversing. In moving for summary judgment, defendant argued that they lacked actual or constructive notice of the light outage, and admitted a report compiled by an expert who examined the stairs at issue in an attempt to argue that the alleged defect was trivial.

The Second Department reversed the lower court’s granting of summary judgment to defendants. Although the court agreed with defendant that they lacked both actual and constructive notice of the light outage, the court disagreed with their argument that the condition of the defective steps was trivial. The court noted that the main support defendants used in arguing the defect was trivial was an expert report. However, according to the court, “the report by [defendant’s] expert had no probative value because the expert did not examine the steps until more than three years after plaintiff’s accident.” Because of this long time-difference between plaintiff’s accident and defendant’s expert report, defendant failed to demonstrate, prima facie, that the alleged defect was trivial, and thus plaintiff’s claim was reinstated.

This case serves as a reminder of the importance of quickly organizing an inspection of an alleged defect shortly after an alleged accident. Otherwise, the court will severely discount the probative value of an inspection conducted much later after the accident.