Doherty v. Smithtown Central School District
| Decision Date | 25 March 2008 |
| Docket Number | 2006-09311. |
| Citation | 2008 NY Slip Op 02785,49 A.D.3d 801,854 N.Y.S.2d 202 |
| Parties | TERESA A. DOHERTY et al., Appellants, v. SMITHTOWN CENTRAL SCHOOL DISTRICT, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The injured plaintiff allegedly slipped and fell on water on the floor of the defendant's premises. The injured plaintiff was looking straight ahead, and she did not see the defect before the accident occurred. After she fell, she saw a four-foot area which was covered with spots of dirty water with footprints in them.
A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Ames v Waldbaum, Inc., 34 AD3d 607 [2006]; Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2005]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Only after the defendant has satisfied its threshold burden will the court examine the sufficiency of the plaintiff's opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Joachim v 1824 Church Ave., Inc., 12 AD3d 409 [2004]).
Here, the defendant failed to submit evidence sufficient to establish that it did not have constructive notice of the alleged hazardous condition (see Cox v Huntington Quadrangle No. 1 Co., 35 AD3d 523, 524 [2006]; Ames v Waldbaum, Inc., 34 AD3d 607 [2006]; Yioves v T.J. Maxx, Inc., 29 AD3d 572, 573 [2006]; Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d at 437). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
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Beck v. Port Authority of New York and New Jersey, 2008 NY Slip Op 33381 (N.Y. Sup. Ct. 12/12/2008)
...threshold burden will the court examine the sufficiency of the plaintiff's opposition (citations omitted)." Doherty v. Smithtown Cent. School Dist., 49 A.D.3d 801 (2nd Dept. 2008); see, also, Gregg v. Key Food Supermarket, supra; Seabury v. County of Dutchess, 38 A.D.3d 752 (2nd Dept. 2007)......
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Ahmed v. Hossain, 2009 NY Slip Op 30671(U) (N.Y. Sup. Ct. 3/23/2009)
...sufficient to establish that he did not have constructive notice of the alleged dangerous condition [(Doherty v. Smithtown Cent. School Dist., 49 A.D.3d 801 (2nd Dept. 2008)], or that he took reasonable precautions to remedy wet conditions on his premises caused by a lengthy rainstorm. See,......
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Miller v. HSBC USA, Inc., 2008 NY Slip Op 33065(U) (N.Y. Sup. Ct. 11/5/2008)
...threshold burden will the court examine the sufficiency of the plaintiff's opposition (citations omitted)." Doherty v. Smithtown Cent. School Dist., 49 A.D.3d 801 (2nd Dept. 2008); see, also, Gregg v. Key Food Supermarket, supra; Seabury v. County of Dutchess, 38 A.D.3d 752 (2nd Dept. 2007)......