Practice point: Defendant failed to eliminate triable issues of fact as to whether it had
constructive notice of the allegedly dangerous condition for a
sufficient length of time before the accident to have permitted it to
discover and remedy it.
In support of its motion, defendant submitted a transcript of plaintiff's deposition testimony, in which she stated, in response to a
question asking her to identify the cause of the fall, that the subject
stairs were shaky and the carpet was loose. So, contrary to defendant's contention, plaintiff sufficiently identified the cause of the fall. In addition, plaintiff testified that the stairs had been shaky
for years and that she complained about the stairs to her supervisor two
or three years before the accident.
Student note: Although defendant also submitted
transcripts of the superintendent's and porter's deposition testimony indicating that they never noticed any dangerous
condition, this simply raised a question of
credibility which may not be resolved on a motion for summary judgment.
Case: Beharovic v. 18 E. 41st St. Partners, Inc., NY Slip Op 08946 (2d Dept. 2014)
Here is the decision.
Friday's issue: Defendant's summary judgment motion in a legal malpractice action.
