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Lack Of Inspection Records Found Fatal To New York Notice Defense (NY)

February 25, 2022

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<p style="text-align: justify;">The ability of a New York premises liability defendant to pursue a notice defense may depend on the timing and evidence of property inspections. In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/02/Argueta-v.-3251-Third-Ave.-LLC.pdf">Argueta v. 3251 Third Ave. LLC</a>,</em> the Supreme Court, Bronx County recently addressed this issue in a case where plaintiff was injured after being hit by a falling ceiling tile. The defendant moved for summary judgment, arguing that it did not have notice of a problem with the ceiling.</p>
<p style="text-align: justify;">In addressing the notice defense, the court stated: “To meet its initial burden on the issue of lack of constructive notice, the defendant must "offer some evidence as to when the area in question was last inspected relative to the [accident]" (<em>citing Birnbaum v New York Racing Assn.</em>, Inc., 57 AD3d 598, 598 [2nd Dept 2008]). The court ultimately found that the defendant could not meet its burden as it did not have any maintenance records for two years before the accident and failed to proffer evidence from someone with personal knowledge as to when the ceiling was last inspected. As such, the court held that defendant failed to establish that it did not have constructive notice of the allegedly dangerous condition and the motion for summary judgment was denied.</p>
<p style="text-align: justify;">The <em>Argueta</em> decision highlights the need for New York property owners to conduct regular property inspections and maintain inspection and maintenance records. The failure to do so can result in the loss of a notice defense in a premises liability action.</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>

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