Practice point: A defendant who moves for summary judgment in a slip-and-fall or
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. In order to meet its burden on the issue of lack of constructive
notice, the defendant must offer some evidence as to when the accident
site was last cleaned or inspected prior to the plaintiff's fall.
Student note: A movant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case. If the defendant fails to meet its prima facie
burden, the court need not consider the sufficiency of the plaintiff's
opposition papers.
Case: Campbell v. New York City Tr. Auth., NY Slip Op 05553 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Leave to enter a default judgment.
