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Lack of Constructive Notice Requires Constructive Evidence

July 21, 2023

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<p style="text-align: justify;">The second judicial department recently reaffirmed its standing on the “lack of constructive notice” defense in a snow and ice slip and fall that happened on New York City subway stairs in 2018. Often used as a defense in premises liability cases, the defense of constructive notice is widely used by defendants to show that they lacked the type of notice that would make them liable for the existence of a certain condition. Here, in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/07/Islam.pdf">Islam</a> v. City of New York</em>, the court stated that in order for lack of constructive notice to be a provable defense, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (<em>Birnbaum v New York</em> <em>Racing Assn., Inc.,</em> 57 AD3d 598, 598-599; see <em>Ahmetaj v Mountainview Condominium,</em> 171 AD3d 683, 684).</p>
<p style="text-align: justify;">"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" (<em>Miller v Terrace City Lodge No. 1499, Improved Benevolent Protection Order of the Elks of the World of Yonkers, N.Y., Inc.</em>, 197 AD3d at 644; see G<em>ordon v American Museum of Natural History,</em> 67 NY2d 836, 837-838). In the case here, defendants City of New York and the New York City Transit Authority moved for summary judgment on the basis that they did not have actual or constructive notice of the hazardous condition that caused plaintiff to slip. This court held that since the action was predicated on a snow and ice condition, “the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (B<em>irnbaum v New York Racing Assn., Inc.,</em> 57 AD3d 598, 598-599) Defendants here only pointed to general cleaning and inspection practices which were insufficient to establish a lack of constructive notice.</p>
Thanks to Dominika Rybaltowski for her contribution to this post. Please contact <a href="Haquino@wcmlaw.com">Heather Aquino</a> with any questions.

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