Practice point: The defendant met its initial burden of demonstrating lack of notice of
the wet condition by submitting evidence that it followed its routine maintenance
and inspection procedures, and that the condition was not observed
either by maintenance staff when they inspected the area, or by
plaintiff and her daughter. Testimony that the plaintiff and her daughter had seen water
on the locker room floor on several other occasions and that the
daughter had complained about it demonstrates, at most, that the defendant
had a general awareness of a wet condition, which is insufficient to
raise a triable issue of fact as to notice.
Student note: The plaintiff's expert's affidavit was
conclusory, and failed to cite any accepted industry practice, standard,
code or regulation that had been violated.
Case: Phillip v. Young Men's Christian Assn. of Greater N.Y., NY Slip Op 03013 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Summary judgment in a action based on a playground fall.
