Summary Judgment Denied to Supermarket That Couldn't Say When it Last Inspected Aisle with "Green Stuff" on Floor That Caused Accident

Case: Klerman v. Fine Fare Supermarket

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

Date: June 20, 2012

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

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SUPERMARKET DENIED SUMMARY JUDGMENT IN SLIP-AND-FALL ACCIDENT; IT FAILED TO MEET ITS LACK OF NOTICE BURDEN AS MOVANT

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Comment: Defense summary judgment motions in accident cases are funny animals. To win summary judgment, the burden is placed on the party making the motion. To win at trial that burden is reversed so that it's on plaintiff. Here, as in many other cases, the defense falls short in meeting its burden in applying for summary judgment against the accident victim. However, there's no indication that plaintiff has enough evidence to win at trial. So defendant here stays in the case, which goes forward, taking time and money and lawyer and court resources, and the plaintiff seemingly can't win at trial, anyway. Sometimes, where a plaintiff loses a summary judgment motion, it's like a "mercy killing," saving much trouble, specially where plaintiff will lose anyway.

Facts: Plaintiff slipped on something green in a supermarket. We don't know if it was fruit or vegetable or green ketchup or what have you. The lower court grants the defense motion for summary judgment dismissing the accident victim's complaint. Not even knowing what plaintiff slipped and fell on, no way can this accident victim make out "notice" to show that the supermarket knew or should have known about the dangerous condition on its floor.

The appeals court saw things differently.

Held: Since the defense can't show that it didn't create the condition and can't say when it last inspected the aisle, it failed to meet its burden as summary judgment applicant. Thus, the supermarket stays in the case. However, it can expect to win at trial, since the plaintiff has the burden of proof at trial. All of which adds up to a waste of time, money and effort for this accident case.

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