In a decision that was recently handed down by a New York trial court in Dabbagh & Elfky v. Newark Knight Frank Global Management Services, LLC, the court took the time to set forth in rather clear fashion how a defendant goes about getting a slip and fall claim dismissed under New York law. (The counterpart to this, of course, is how to prove a slip and fall case under New York law).
In this case, the court dismissed the case against the property owner, who owned the Roosevelt Field Mall, where the slip and fall occurred. On the other hand, the court declined to grant the motion to dismiss of the management company who had been hired by the owner to maintain the premises in a safe fashion.
In rendering the ruling, the court acknowledged that while a defendant cannot be liable in negligence for a slip and fall if the defendant "took reasonable precautions to remedy the wet condition on the floor," it remains the defendants' burden to affirmatively prove that its actions were appropriate, and that it did not have actual or contstructive notice of the condition before the court will dismiss the case without a plenary trial. See, e.g., Giuffrida v. Metro N. Commuter R.R. Co., 279 AD2d 403, 404 [1st Dept 2001] ["Contrary to defendant's suggestion, it is not plaintiff's burden in opposing the motions for summary judgment to establish that defendants had actual or constructive notice of the hazardous condition. Rather, it is defendants' burden to establish the lack of notice as a matter of law"].