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NY App. Div. Finds Maintenance Records Key in Establishing Constructive Notice

May 27, 2010

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In Zambri v. Madison Sq. Garden, the Second Department upheld the lower court’s denial of defendant’s motion for summary judgment, stating that the defendant failed to establish that it did not have constructive notice of the allegedly hazardous condition that caused plaintiff to fall. In Zambri, plaintiff slipped and fell on beer that had been spilled on the floor at Madison Square Garden. Although plaintiff didn’t see the beer before her fall, after landing on the ground, her pants were wet and smelled like beer.
Despite defendant’s event supervisor’s testimony that he inspected the floor over the course of the night and did not recall seeing any beer on the ground, the documentary evidence revealed that the area had been mopped on two separate occasions, well after plaintiff’s fall. Since the defendant did not offer any evidence as to when the area was last cleaned prior to plaintiff’s fall, the Second Department held that the defendant failed to establish that it did not have constructive notice of the condition prior to plaintiff’s fall.
Thanks to Lora Gleicher for her contribution to this post.
<a href="http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04370.htm">http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04370.htm</a>

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