ACCIDENT VICTIM TRIPPED OVER CART, NO NOTICE TO DEFENDANT OF CONDITION AND IT GETS CASE DISMISSED ON SUMMARY JUDGMENT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Atashi v. Fred--Doug 117 LLC

Date: Aug. 18, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens personal injury lawyer)

Comment: Plaintiff security guard tripped on a dolly (wheeled cart) in an indoor hallway. The defense got the case tossed because it had no "notice" of the cart being there. Before the accident occurred the cart wasn't there, it was Saturday and only the plaintiff was in the area, patrolling, and sometimes building tenants borrowed the cart. Without notice the landlord can't be held liable (responsible) for the condition and for the accident and injury to the plaintiff. Case dismissed on summary judgment.

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Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 12, 2010, which, upon reargument, vacated a prior order, same court and Justice, denying defendants' motion for summary judgment dismissing the complaint and granted defendants' motion for summary judgment, unanimously affirmed, without costs.

Plaintiff, while on duty as a security guard, tripped and fell over a large flatbed dolly, as he entered a long basement corridor that led to the building's garage. According to the managing agent, tenants sometimes borrowed the dollies from building staff.

Defendants established, prima facie, that they did not create the alleged dangerous condition or have actual or constructive notice thereof.

Actual notice may be found where a defendant either created the condition, or was aware of its existence prior to the accident (see Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249 [1984] affd 64 N.Y.2d 670 [1984] ). In order to constitute constructive notice, a defect must be visible and apparent for a sufficient length of time to permit the defendant's employees to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986] ).

Here, dollies were used by tenants of the building and there is no evidence that defendants created the condition that allegedly caused plaintiff's accident. Whereas the court on the original motion had held that defendants failed to provide sworn testimony from a person with knowledge as to when the area was last inspected before plaintiff's fall, plaintiff's own deposition testimony established that about five hours before the accident, he did not see any objects in the corridor where he alleges he later tripped and fell. Further, since the accident occurred on a Saturday, plaintiff would have been the only employee present at the building during the time of his shift to have inspected the accident location on defendants' behalf.

In opposition, plaintiff failed to raise an issue of fact that defendants created the condition or had a reasonable opportunity to become aware of and cure the alleged defect (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986] ). Plaintiff did not produce probative evidence either as to how long the condition existed prior to the accident, or as to what personnel, apart from himself, could have learned of and/or cured the condition.

In light of the foregoing, we need not address defendants' contentions that they are entitled to summary judgment because the large dolly in the small corridor was an open and obvious condition and not inherently dangerous.

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