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Summary Judgment Denied Where A Defendant Did Not Address All Elements Of Plaintiff’s Premises Liability Claim (NY)
April 21, 2023
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A defendant seeking summary judgment in a premises liability case must address all of the elements of plaintiff’s claim, including whether a dangerous or defective condition exists and whether they had actual or constructive notice of the condition. The failure to do so will result in a denial of the motion, as evidenced by a recent decision of the Appellate Division, Second Department in<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/04/Cabanas-v.-Qiu-Yu-Zou.pdf">Cabanas v. Qiu Yu Zou</a>.</em>
In that case, the plaintiff lived on the second floor of defendant’s home was allegedly injured when she fell while descending an interior staircase. Plaintiff allegedly fell because the height of the riser for the bottom step differed significantly from the height of the risers for the other steps and because the handrail was too high from the steps. The owner moved for summary judgement on the basis that there was no defective condition which was a proximate cause of the plaintiff's accident and trial court denied the motion.
The Second Department affirmed, recognizing that a landowner moving for summary judgment has the burden of establishing, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it. The Court noted that even though the owner produced an expert engineer who opined that that the difference in riser height was not a proximate cause of the accident based upon the plaintiff's deposition testimony that she lost her balance while stepping on the tread of the bottom step, the owner did not adequately address plaintiff’s notice allegation. The evidence both parties submitted to the court, including deposition transcripts and several photographs, failed to establish that the owner did not have notice of the condition. Since the owner did not refute the notice element of plaintiff’s claim, the denial of summary judgment was upheld.
The <em>Cabanas</em> decision serves as a reminder that defendants in premises liability cases must address and refute each element plaintiff’s claim in moving for summary judgment.
Thanks to Alexander Rabhan for his contribution to this post. Please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.