In order to succeed on a premises liability claim for negligence based upon a defective or dangerous condition, a plaintiff must show that the dangerous condition either was created by the defendant or that the defendant had either actual or constructive notice of the defective condition. There is a large body of case law on what will constitute constructive notice and how it (or the lack of it) must be established.
Recently, the Second Department weighed in on this issue. In Palladino v Monadnock Construction, the plaintiff was a former police officer who claimed he was injured when he fell on the site of a construction project while pursuing robbery suspects. He claimed that he tripped on “construction debris” and sued the general contractor alleging causes of action for the negligence and violations of General Municipal Law § 205-e.
The defendant moved for summary judgment and the Supreme Court denied the motion, and the defendant appealed. The Appellate Division, Second Department, reversed the lower court’s decision denying summary judgment and found that the general contractor demonstrated its prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action by establishing that it did not create or have actual or constructive notice of any dangerous condition on the premises. The construction manager testified that inspections of the subject area performed prior to the accident did not reveal the existence of any dangerous conditions. Plaintiff testified that he did not see any debris, and at his deposition he could not identify the alleged debris or describe it. Based upon this testimony, the Appellate Division found that plaintiff had failed to come forward with sufficient evidence to raise a triable issue of fact as to the existence of a dangerous condition created by the defendant, or of which the defendant had actual or constructive notice.
As to the GML § 205-e claim, the Appellate Division found that defendant had established its entitlement to judgment as a matter of law dismissing those claims as well. The defendant established that the cited regulations pertaining to public streets and sidewalks cited by plaintiff did not apply, since the area in question was closed to the public during the construction, including at the time of the plaintiff’s accident, and also demonstrated that it did not violate any of the remaining statutes and regulations cited by the plaintiff. The plaintiff failed to raise a triable issue of fact in opposition. Thanks to Jorgelina Foglietta for her contribution to this post. Please email Vincent Terrasi with any questions.