Sometimes it's worthwhile to revisit an important lesson.

So, at the risk of redundancy, here goes.

If a property owner has been sued in negligence due to a slip and fall accident that resulted in personal injuries, there are often a number of ways that this defendant can secure dismissal from the case prior to trial - particularly given that plaintiffs often have difficulty establishing that the defendant either created the defective condition, or knew or should have known about the condition, but did not remedy the condition in a timely fashion. (As you may recall, this is called the doctrine of actual or constructive notice).

So you might be inclined to believe that a defendant can be excused, or dismissed, from the case by merely denying that he had any role in creating the defect, and had no knowledge of it, right?

Wrong.

As a Bronx County judge in Aponte v. Mohegan Apartments Assoc. reminded us in a June 30 opinion that is scheduled to appear in tomorrow's edition of the New York Law Journal,

"To meet their initial burden regarding lack of notice, the defendants must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (see Nugent v. 1235 Concourse Tenants Corporation, et al., 83 A.D.3d 532, 920 N.Y.S.2d 660 [App Div 1st Dept 2011]; Sabalza v. Salgado, 2011 WL 2183978 (App Div 1st Dept), 2011 N.Y. Slip Op. 04732; Cignarella v. Anjoe-A.J. Market Inc., 68 A.D.3d 560, 561, 890 N.Y.S.2d 542 [App Div 1st Dept 2009]; Porco v. Marshall's Department Stores, 30 A.D.3d 284, 285, 817 N.Y.S.2d 268 [App Div 1st Dept 2006])."

 

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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