Wade Clark Mulcahy LLP

<p style="text-align: justify;">In a recent premises liability claim, a plaintiff slipped and fell on refuse on the walkway of her building.  She brought suit arguing there was an issue of fact as to constructive notice to the defendant, however the First Dept. disposed of her argument.   In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/07/Rodriguez-v.-NYC-Housing-Authority.pdf">Rodriguez v. NYC Housing Authority</a>,</em> 2022 NY Slip Op 03461 (1st Dept. 2022), plaintiff had a slip and fall on the walkway of the building due to a cardboard box being left on the ground. Defendant moved for summary judgment arguing that it did not have actual or constructive notice of the refuse and they maintained a reasonable cleaning routine of the area because the building caretaker cleaned the walkway twice a day. The trial court granted summary judgment concluding that constructive notice could not be proven because the cardboard box could have been left after the caretaker had cleaned the walkway and he would not have known about it, and the building proved that it regularly patrolled the walkway.</p>
<p style="text-align: justify;">The First Dept. affirmed the dismissal of plaintiff’s claim ruling that the premises owner was not required to patrol the area 24 hours a day, and the caretaker’s twice a day schedule was not “manifestly unreasonable.” The plaintiff tried, unsuccessfully, to argue triable issues of fact existed regarding constructive notice because the caretaker testified that he knew that tenants regularly left garbage on the walkway. The First Dept. rejected plaintiff’s assertion of triable issues of fact, concluding that a general awareness of a problem was addressed by the caretaker’s regular schedule of cleaning the walkway twice a day; and a general awareness of refuse does not lead to a specific awareness of the cardboard box which caused the accident to which defendants could not be found culpable. This case highlights that even in the First Dept., which is a notoriously plaintiff-friendly venue, a strong argument against constructive notice of a defect can sustain a summary judgment dismissal, so long as there is evidence that the premises owner maintained a regular patrolling of the public area for any dangerous defects or tripping hazards.</p>
<p style="text-align: justify;">Thanks to Raymond Gonzalez for his contribution to this article.  Please feel free to contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken</a>.</p>