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NY Appellate Division Tosses Plaintiff's Case on Issue of Notice

August 24, 2009

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In <i>Wartski v. C.W. Post Campus of Long Is. Univ., </i>the plaintiff claimed that she was injured when she slipped and fell on water and icy snow that was tracked onto the stairs of the defendant's building. The trial court denied defendant’s motion for summary judgment. On appeal, the Appellate Division, Second Department reversed and ordered that summary judgment be granted to the defendant.

The Second Department determined that the evidence was insufficient to show that the defendant had actual notice of a recurring dangerous condition such that it could be charged with constructive notice of each specific re-occurrence. At most, the defendant had only a general awareness that the stairs became wet, which was insufficient to establish constructive notice or a recurring dangerous condition.

The appellate court also found that the plaintiff’s expert affidavit submitted in opposition to defendant’s summary judgment motion should not have been considered in determining the motion’s outcome. Since the plaintiff failed to identify the expert until after all discovery was certified as complete and failed to provide a valid excuse for the delay, the plaintiff’s expert affidavit should have been disregarded.

New York remains a good state for defendants on the issue of notice. In every slip and fall case, the plaintiff's proof should be scrutinized on the issue of notice and summary judgment considered after discovery is complete.

Thanks to Jung Lee for his contribution to this submission.

<a href="http://www.nycourts.gov/reporter/3dseries/2009/2009_05115.htm">http://www.nycourts.gov/reporter/3dseries/2009/2009_05115.htm</a>

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