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MSZL&M PREVAILS ON SUMMARY JUDGMENT FOR LANDOWNER ON LACK OF NOTICE AND ON ITS FAILURE TO CREATE CONDITION
Michele McCarthy, Esquire and Kevin Kelly, Esquire
Howard Berger stopped at his ophthalmologist's office in Westchester County, New York to pick up a supply of contact lenses. To get to the ophthalmologist's office, Mr. Berger took the stairs, not the elevator. Mr. Berger did not remember if he saw a bicycle in the stairwell when he entered the building, nor did he remember if he saw a bicycle as he proceeded up the stairs. The first time Mr. Berger saw the bicycle was after he fell and he was lying on the ground. Mr. Berger commenced a lawsuit based on negligence against the owner of the building and the owner of the bicycle. The case is venued in Westchester County, New York.
Mintzer Sarowitz Zeris Ledva & Meyers represented the owner of the building, and based on these facts we immediately moved for summary judgment on the issue of liability. The leading case in New York to establish a prima facie case for negligence in a "slip and fall" action is Gordon v. Am. Museum of Natural History. The court in the Gordon case ruled that a plaintiff must demonstrate either that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of such condition. To establish constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it. The plaintiff in the Gordon case was descending the upper level of the entrance steps of the museum when he slipped on the third step. The Court of Appeals dismissed the complaint finding that the plaintiff had failed to establish "constructive notice" of the particular condition that caused the fall.
The Gordon case is similar to the Howard Berger case because, like the plaintiff in Gordon, Mr. Berger was descending the stairs when he tripped and fell. The owner of the property cannot be held liable for causing Mr. Berger's injuries because the owner did not create the condition that caused Mr. Berger to fall, nor did the owner have notice of the bicycle that was chained to the stairwell. Mr. Berger testified that the first time he noticed the bicycle was after he fell and he was lying on the ground. The owner of the building also testified that he had no knowledge of bicycles in the stairwell.
The court in the Howard Berger case correctly applied the rule from the Gordon case and granted the owner's motion for summary judgment on liability because, based on the facts in the Berger case, it was apparent that the owner did not have notice of the bicycle before the accident, nor did the owner create the condition that caused the accident.
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