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Inspection Evidence Prevails in Rainy Slip Case (NY)

October 14, 2016

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<p style="text-align: justify;">In <a href=""><em>Mavis v Rexcorp Realty, LLC</em></a>, a recent decision from the Second Department Appellate Division, the Court addressed a few recurring legal issues that often arise in premise liability actions.</p>
<p style="text-align: justify;">The plaintiff in this case alleged she was injured on a rainy morning after she slipped and fell on the lobby floor of the building where she worked. She filed suit against the building owner and the contractor hired to clean the common areas of the building.</p>
<p style="text-align: justify;">The defendants filed motions for summary judgment, each with different arguments. The owner argued that there was no notice of a dangerous condition, submitting deposition testimony as to when the building’s employee and the contractor each inspected the area of the fall. In affirming the Supreme Court’s decision granting summary judgment, the Appellate Division held that “a defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it.” The decision continued, “to meet its initial burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall.” In finding the defendant met its burden through deposition testimony, the court reminded the parties that the “submission of evidence as to the defendant's general cleaning practices is generally insufficient” and “specific evidence as to cleaning practices may be adequate, depending on the circumstances of the case.”</p>
<p style="text-align: justify;">With respect to the contractor-defendant, the plaintiff sought liability based upon the contract between the defendants. However, the general rule is that a contractual obligation standing alone will not give rise to tort liability in favor of a third party. The Appellate Division applied this principle and noted that although there are exceptions, if the plaintiff does not expressly plead an exception, or set forth one in the bill of particulars, one will not apply. For this reason, the Appellate Division affirmed the finding of summary judgment in favor of the contractor-defendant.</p>
<p style="text-align: justify;">Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

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