In Isaacs v Federated Dept. Stores, Inc., the Second Department recently discussed how regular maintenance and good record keeping can help defendants meet their burden to on issues of constructive notice.

The case arises from injuries allegedly sustained by plaintiff while riding an escalator at a Macy’s Department Store in Brooklyn, NY. According to the plaintiff, a broken and protruding piece of metal caught onto her purse strap and caused her to fall.  Plaintiff commenced the action against defendant Macy’s (Federated Department Stores), who subsequently commenced a third-party action against Thyssenkrupp Elevator Corporation (Thyssenkrupp). Macy’s sought indemnification and contribution from Thyssenkrupp on the basis of their contract for escalator repair and maintenance. After discovery, Macy’s moved for summary judgment to dismiss the complaint, arguing that it did not have notice of the allegedly dangerous escalator condition. The Supreme Court denied Macy’s motion.

On appeal, the Second Department reversed, reasoning that as property owner, Macy’s submitted prima facie evidence that it did not create or have actual or constructive notice of the alleged defect. In New York, a defendant is said to have constructive notice of a defect when the defect is visible and apparent and it existed for a “sufficient length of time before the accident that it could have been discovered or corrected.” Accordingly, to meet its burden on the issue of constructive notice, a defendant must offer some evidence regarding the last time the site was inspected prior to the plaintiff’s accident.

Macy’s proof was specific and persuasive.   Through the deposition testimony of a Thyssenkrupp technician and escalator inspection logs, Macy’s established that it inspected the escalator regularly and that there were no prior complaints regarding the escalator. In addition, a Macy’s employee testified that he inspected the escalator hours before the plaintiff’s injury and that he did not observe any defect.  In opposition, the plaintiff failed to raise a triable issue of fact – i.e., that the alleged condition existed for a long enough period of time to put Macy’s on constructive notice. Accordingly, the Second Department held that the Supreme Court should have granted Macy’s summary judgment motion and dismissed the plaintiff’s complaint.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.