How Some NY Construction Site Owners Lose Winnable Negligence Cases

Reading the Appellate Division, Second Department's November 9 decision in Nankervis v. Long Island University, you can't help but get the feeling that the school may be terribly frustrated at its inability to secure the dismissal of a construction site negligence case that they probably shouldn't be liable for.

As noted in our earlier articles, "How to Prove a Construction Site Accident Case in New York" and "The 2 Types of NY Labor Law §200 Cases - and How to Prove Them," the plaintiff in one of these cases must prove that the defendant had the power to control the worksite and had notice, i.e., created the defective condition that caused the injury, or either knew or should have known about it, yet failed to timely correct it. But when a defendant seeks a court order dismissing the negligence claims before trial, the burden of proof is reversed: it becomes the defendant's responsibility "to show that it neither created the dangerous condition nor had actual or constructive notice of it within a reasonable time to correct it (see Slikas v Cyclone Realty, LLC,AD3d, 2010 NY Slip Op 06627 [2d Dept 2010]; Ortega v Puccia, 57 AD3d 54, 61-62; Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708)."

And in this particular case, the court refused to dismiss the action because it held that the defendant failed to affirmatively establish "that it lacked actual or constructive notice of the alleged defect (see Mikhaylo v Chechelnitskiy, 45 AD3d 821; Keating v Nanuet Bd. of Educ., 40 AD3d at 709)."