Nassau County Supreme Court Denies Hospital’s Motion for Summary Judgement in Slip and Fall Case, Finding Insufficient Support on The Issue Of Constructive Notice

Written by: Daniele DeZago, Esq

Edited by: Nicole A. Callahan, Esq.

Judge Voutsinas denied defendant Mercy Medical Center’s motion for summary judgment in an alleged slip and fall case.  Plaintiff alleged she slipped and fell on an unknown clear wet substance on a second floor hallway of Mercy Medical Center on Sunday April 16, 2017, while visiting her mother who as a patient.  The Court found that the deposition testimony of the Assistant Director of Facilities Management, Mr. Polo, for the defendant was insufficient support to grant summary judgment.

Mr. Polo testified that he and/or staff perform walk throughs of the building Monday through Friday, inspecting it for leaks, light issues, heating and/or electrical problems.  He was unable to testify whether these walk-throughs were conducted on Saturday and Sunday, which is when the plaintiff allegedly fell.  Mr. Polo further testified that there were no records to show which personnel completed the walk-throughs and at what time, and he could not establish a specific protocol for the walk-throughs.

In its decision denying the defendant’s motion for summary judgment, the Court cited to Birnbaum v. New York Racing Ass’n, Inc., 57 A.D.3d 598 (2nd Dept. 2008), which held that a defendant must offer some evidence as to when an area in question was last cleaned or inspected relative to the time when a plaintiff fell to meet its burden with regard to lack of constructive notice. The court went on to state that the “mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice.”  Johnson v. 101-105 S. Eight ST. Apartments Hous. Dev. Fund Corp., 185 A.D.3d 671 (2nd Dept. 2020), citing Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 1051 (2nd Dept. 2013).  Specifically, Judge Voutsinas found that Mr. Polo’s testimony was insufficient to meet the prima facie burden required for summary judgment, and the defendant failure to provide any documentary evidence of when the area was last cleaned or inspected prior to the plaintiff’s fall to supplement the testimony.

Importantly, Judge Voutsinas’s decision adds to the growing body of precedent holding that a defendant must establish a lack of constructive notice of the alleged condition at the premises with specific evidence of the last time the site was cleaned and/or inspected.  As such, property owners should consider maintaining records of routine inspections and cleanings to provide support of lack of notice in the event of an accident.