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Dismissal Denied
by Ron Davis

Blame for an injury a shopper suffered at a New York shopping center has now focused on a tenant of the property.

The tenant is Ban Do International, Inc., which operates a clothing store at the center. And the shopper’s injury results from a fall that he claims was caused by a patch of ice on the sidewalk adjacent to the clothing store.

The injured shopper accused the center’s principal, Park & Shop, Inc., as well as JP Morgan Chase Bank, the Park & Shop lender, on grounds that they failed to take measures to provide safe accommodations for customers of the center.

Ban Do, which the injured shopper also blamed, claimed innocence and asked for the court to dismiss any charges aimed at its company. Ban Do pointed to the shopping center for negligence.

Under New York law, a property owner or controller of property will be held liable for injuries sustained in a slip-and-fall accident “only when it created the dangerous condition or had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.”

Moreover, a property owner or controller of property claiming innocence must offer some evidence as to when the area in question was last cleaned or inspected “relative to the time of the accident” that caused the mishap.

The lease in effect at the occasion of the accident required Ban Do to maintain the walkway at the rear of it clothing store so that it is “free from snow and ice.” Ban Do argued that the injured shopper did not know what caused him to slip and fall. In fact, Ban Do added, the injured shopper did not know that he slipped and fell as a result of a patch of ice that was on the walkway at the rear entrance to the Ban Do store. Ban Do also claimed that the fall could have been caused simply by the shopper tripping over his own feet.

A New York Supreme Court (Appellate Division) ruled, however, that Ban Do “did not demonstrate its entitlement to judgment as a matter of law.”

The court added, “Ban Do failed to make a showing that it lacked constructive notice of the ice condition alleged by the plaintiff. Ban Do simply failed to present evidence of when it had last cleaned or inspected the specific area of the walkway where the slip and fall incident occurred.

“The affidavit of Ban Do’s principal established nothing more than Ban Do’s general cleaning practices in relation to the walkway at the rear entrance to its store, which was insufficient to demonstrate that it lacked constructive notice of the ice condition on which the plaintiff allegedly slipped and fell.

“Since the evidence submitted in support of Ban Do’s argument did not establish its prima facie entitlement to judgment,…the Supreme Court properly denied its (Ban Do’s) motion without regard to the sufficiency of the papers submitted in opposition thereto.”

(Sartori v. JP Morgan Chase Bank, 2015 WL 1915224 (N.Y.A.D. 2 Dept.))

Decision: May 2015
Published: May 2015



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