Robert S. Kelner and Gail S. Kelner

It is well settled that landowners have a duty to keep their premises in a reasonably safe condition considering all the circumstances. Basso v. Miller, 40 N.Y.2d 233(1976). This duty of care includes reasonable inspections of areas of potential defects.

In order to establish a prima facie case of liability arising out of a defective premises condition, a plaintiff must establish that defendant either caused and created a dangerous condition or had actual or constructive notice of it. Cases where it can be shown that defendants either had actual notice or caused and created the defect are generally easier to prove than those that require showing that a defendant had constructive notice.

In the seminal case, Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986), the Court of Appeals held that to constitute constructive notice, a defect must be visible, apparent and must exist for a sufficient length of time to permit defendant or its employees to discover and remedy the condition. Constructive notice is most easily proven where there are witnesses who can establish that the defect existed for a sufficient time to allow defendant to discover it or where the defect itself exhibited proof of its long-standing existence, such as visible rust, vegetation growing out of the crack at issue or other proof of an aging defect. Compiling the proof necessary to establish constructive notice entails careful investigation, especially with transient conditions such as debris or weather related defects such as ice and snow. Showing that the defect was present long enough to permit discovery and repair requires thorough exploration during discovery. Whether and when the area was last inspected is important in these cases, both to establish plaintiff’s case and to oppose a defense motion to dismiss. The duty to make reasonable inspections is a significant factor in cases involving constructive notice.

Defendant’s failure to conduct a timely and proven inspection of an accident site may be a prominent component of plaintiff’s prima facie showing of liability for defective premises under certain circumstances. Constructive notice may be a significant factor in imposing liability where an object capable of deteriorating is concealed from view. Personius v. Mann, 20 A.D.3d 616 (3d Dept. 2005), modified in relevant part, 5 N.Y.3d 857 (2005). On this issue, the court in Hayes v. Riverbend Housing Co., 40 A.D.3d 500 (1st Dept. 2007) held:

Where, as here, an object capable of deteriorating is concealed from view, a property owner’s duty of reasonable care entails periodic inspection of the area of potential defect… If no such “program” of inspection is “in place,” constructive notice of the defect is “imputed” … On the other hand, if the landlord has not violated its inspection obligation, there is no issue as to constructive notice… While the extent of the duty varies, generally it is one of “reasonable inspection.”

Personius, 20 A.D.3d at 617-18 (internal cites omitted).

For example, recently, in Conklin v. 500-512 Seventh Ave., LP, 159 A.D.3d 451 (1st Dept. 2018), plaintiff was injured when the landing of a metal staircase in the sub-basement of defendant’s building collapsed under him, causing him to fall to the cement floor below. He made a prima facie showing that defendant had constructive notice of the defective condition of the stairs by submitting photographs showing the staircase covered in rust, and evidence that defendant had no program of inspection for the staircase and had never inspected it in the 27 years preceding the accident. In Stubbs v. 350 E. Fordham Rd., 117 A.D.3d 642 (1st Dept. 2014), defendant failed to establish that it exercised reasonable care in maintaining the facade of a building which crumbled, injuring plaintiff. Defendant’s managing member testified only that he would observe the exterior facade of the building as he walked past the building. Plaintiff’s engineer opined that even a cursory inspection would have disclosed the issues that required repair. Thus, the court held that the record presented an issue of fact as to whether defendant exercised reasonable care in maintaining the facade and whether constructive notice could be imputed. In McKee v. State, 75 A.D.3d 893 (3d Dept. 2010), the court held that evidence of spalling on a sill was constructive notice of deterioration and supported a determination that defendant’s failure to maintain the sill created a dangerous condition.

It should be noted that in light of the recent Court of Appeals decision in Rodriguez v. City of New York, 2018 NY Slip Op 02287 (2018), plaintiff should consider moving for partial summary judgment on the issue of liability in cases where the evidence shows that defendant had actual and/or constructive notice of a premises defect, as issues of comparative negligence will no longer prevent such relief.

A failure to inspect may be fatal to a defendant’s motion to dismiss a complaint arising out of a premises defect. Showing a lack of constructive notice is generally essential to a defendant’s ability to make a prima facie showing for dismissal. To meet its prima facie burden on the issue of lack of constructive notice of a defective premises condition, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff was injured. Birnbaum v. New York Racing Assn., 57 A.D.3d 598 (2d Dept. 2008). For example, in Hanney v. White Plains Galleria, LP, 157 A.D.3d 660 (2d Dept. 2018), plaintiff was injured when he fell as the result of a cracked step. The court denied defendants’ motion for summary judgment, without even considering the sufficiency of plaintiff’s papers, as defendants were unable to establish when the steps were last inspected prior to the accident.

Evidence of general cleaning practices is insufficient to establish a lack of constructive notice. A defendant must provide evidence regarding specific cleaning or inspection of the area in question in order to support a motion to dismiss the complaint based upon lack of constructive notice. For this reason, plaintiffs should conduct careful and complete discovery on the history of building maintenance and repair as defendant’s proven failure to properly inspect is fatal to a contention of lack of constructive notice. For example, in Rong Wen Wu v. Arniotes, 149 A.D.3d 786 (2d Dept. 2017), defendants’ motion was denied where they could not show when the area of the sidewalk where the subject accident occurred was last inspected prior to the accident involving a fall on ice.

In Soloveychik v. Sea Isle Owners, 160 A.D.3d 782 (2d Dept. 2018), plaintiff fell on an icy sidewalk abutting the defendant’s apartment building. She established that she had to step over a pile of snow to reach the sidewalk from the street and that there were patches of snow and ice and lumps of ice scattered across the sidewalk. Although defendant moved to dismiss the complaint, alleging lack of notice, its motion was denied as it failed to submit any evidence as to when the superintendent or a member of his staff last removed snow and ice from the sidewalk prior to the incident, or what the sidewalk looked like after the work was performed. It also failed to submit any evidence as to when the sidewalk was last inspected prior to the incident. Defendant’s testimony addressed only the building’s general sidewalk maintenance practices.

In Arzola v. Boston Properties Ltd. Partnership, 63 A.D.3d 655 (2d Dept. 2009), the plaintiff tripped and fell over a raised and bunched up mat in the lobby of defendant’s building. Defendant’s motion for summary judgment to dismiss the complaint was denied as they could not show lack of constructive notice. They offered no evidence as to when the lobby area where the plaintiff fell was last inspected prior to the accident.

Mere evidence that there was generally a schedule to inspect is insufficient to meet defendant’s burden. In Dylan P v. Webster Place Associates, 132 A.D. 3d 537 (1st Dept. 2015), aff’d 27 N.Y.3d 1055 (2016), the infant plaintiff was injured when the shopping cart in which he had been placed collapsed when the wheel caught in an open drain in the laundry room from which the cover was missing. Defendant building owner moved for summary judgment to dismiss the complaint solely on the basis that it had neither actual nor constructive notice of this dangerous condition. The building superintendent testified that he swept the laundry room routinely every morning and performed daily inspections. However, he could not recall if he had checked the laundry room on the day of the accident or offer any other evidence regarding the last time he had specifically inspected the area prior to the accident. The Appellate Division rejected this testimony, stating that “mere proof of a set janitorial schedule does not prove it was followed on the day of the accident or eliminate the issue of constructive notice …” As defendant had failed to make a prima facie case sufficient to shift the burden to plaintiff, the court held that the sufficiency of the opposition was irrelevant and the motion should have been denied. This holding was affirmed by the Court of Appeals.

In Vargas v. Cadwalader Wickersham & Taft, 147 A.D.3d 551 (1st Dept. 2017), plaintiff was stabbed by a piece of metal protruding from defendant’s table. Defendant’s motion to dismiss the complaint because it lacked actual or constructive notice of the condition was denied. The court held that there were triable issues of fact as to whether defendant had constructive notice of the alleged defective condition because defendant’s witnesses lacked personal knowledge as to when the table or its legs were last inspected or their condition before the accident.

Very recently, in Socorro v. New York Presbyt. Weill Cornell Med. Ctr., 160 A.D.3d 544 (1st Dept. 2018), the court found that defendant failed to sustain its prima facie burden of showing that it did not create or have notice of the puddle of water in front of a nurses’ station in the emergency room. Although its operations manager testified to general cleaning and inspection procedures, he did not state that they were followed on the day of the accident, did not know if he worked that day, and did not know when the area was last inspected

In Baez v. Willow Wood Assoc., LP, 159 A.D.3d 785 (2d Dept 2018), plaintiff tripped and fell in a hole in defendant’s shopping center parking lot. Defendant’s motion for summary judgment dismissing the complaint was denied by the Appellate Division. The court summarized the case law, and reiterated that a defendant who moves for summary judgment in a trip-and-fall case has “the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.” It stated that a defendant “has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it.” The court held that to meet its burden, a defendant must offer evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall. Defendant failed to meet that burden. The deposition testimony and affidavit of the property manager, merely referred to her general inspection practices for the parking lot. It offered no evidence regarding any specific inspection of the area in question prior to the injured plaintiff’s fall.

See also Lombardi v. Partnership 92 W., L.P., 129 A.D.3d 547 (1st Dept. 2015), where plaintiff was injured when a fire-escape ladder malfunctioned. Defendants failed to show they lacked constructive notice of the alleged defect where their witnesses testified that they did not service or test the fire escape prior to plaintiff’s accident, and defendants did not produce any inspection reports. In Torre v. Aspen Knolls Estates Home Owners Ass’n, Inc., 150 A.D.3d 789 (2d Dept. 2017), defendants’ motion to dismiss was denied where plaintiff slipped and fell on a patch of ice on top of a manhole cover on a private roadway on defendant’s property. The court stated that a defendant has constructive notice of a hazardous condition on property where the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it. Defendant did not meet its burden in that it failed to submit any evidence as to when, prior to the subject accident, the area of the roadway where the alleged slip and fall occurred was last inspected or cleaned relative to the subject accident.

So too, in Bissett v. 30 Merrick Plaza, 156 A.D.3d 751 (2d Dept. 2017), defendant failed to establish, prima facie, that it did not have constructive notice of the hazardous pile of leaves and other debris at the bottom of its staircase into which plaintiff fell. Defendant’s witness testified that he could not remember whether he had checked the subject staircase on his last weekly inspection prior to the accident and that he did not know whether the landscaper or anyone else was responsible for removing leaves from the staircase. Thus, the defendant failed to establish, prima facie, that the subject condition had not been there for a sufficient period of time for the defendant to have discovered and remedied it.

It is clear that careful discovery, both through testimony and documentary evidence, is essential in cases involving premises defects. A key element for plaintiffs to seek is testimony and documentary evidence pertaining to inspections.

Robert S. Kelner is senior partner at Kelner & Kelner. Gail S. Kelner is an attorney with the firm.