In Mandarano v PND, LLC, et al. the plaintiff allegedly was injured when he slipped and fell on a large piece of wet cardboard during a rainstorm. The wet cardboard was located on the public sidewalk next to a building in New York City owned by defendants PND, LLC, and AN & Brothers, Inc. (“PND defendants”), and leased in part to defendants BBCN Bancorp, Inc., and BBCN Bank (“BBCN defendants”). Following discovery, the PND defendants moved for summary judgment dismissing the complaint asserted against them. The lower court not only granted the motion, but upon searching the record, awarded summary judgment in favor of the BBCN defendants too. Not surprisingly, Plaintiff appealed.
The Appellate Division, Second Department, upheld the lower court’s decision, reasoning that a defendant that moves for summary judgment in a trip-and-fall case has the initial burden of establishing, prima facie, that it neither created nor had actual or constructive notice of the alleged hazardous condition. In New York, to constitute constructive notice, a defect must be visible and apparent for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it. See Gordon v American Museum of Natural History, 67 N.Y.2d 836, 838; Birnbaum v New York Racing Assn., Inc., 57 A.D.3d at 598-599; Bykofsky v Waldbaum’s Supermarkets, 210 A.D.2d 280.
Here, the Appellate Division found that contrary to the plaintiff’s contention, the PND defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence of their trash collection and disposal practices, deposition testimony regarding the routine cleaning of the sidewalk each morning, and deposition testimony from several witnesses who walked through the area shortly before the plaintiff’s accident and did not observe the condition that allegedly caused his fall. In opposition, the plaintiff presented merely speculative arguments that were insufficient to raise a triable issue of fact. See Arslan v Richmond N. Bellmore Realty, LLC, 79 A.D.3d 950, 951; Kaufman v Man-Dell Food Stores, 203 A.D.2d 532, 533.
Accordingly, the Appellate Division found that the lower court properly granted the PND defendants’ motion for summary judgment. Moreover, given the evidence presented on the motion, the court properly exercised its authority pursuant to CPLR 3212(b) in searching the record and awarding summary judgment to the nonmoving BBCN defendants with respect to an issue that was the subject of the motion before the court. See Sang Woon Lee v Il Mook Choi, 132 A.D.3d 969, 971; Bernal v 521 Park Ave. Condo, 128 A.D.3d 750, 751.
This case serves as a critical reminder to businesses and property owners that implementing routine procedures and keeping detailed daily maintenance records, while somewhat trying, can help save you from liability in lawsuits involving an accident at your premises.