Thomas M. Bona, P.C.

Attorneys At Law

No Notice:

Second Department Affirms Dismissal A Case Arising Out Of Hurricane Irene


As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent case where the Second Department affirmed a dismissal in a trip and fall action for lack of notice.


We previously reported back in July 2014 about a case where we defended an insured which arose from Hurricane Irene. In Leary v. Dutchess Apartment Associates, LLC, Hurricane Irene penetrated the defendants’ apartment building's lower level and flooded the plaintiffs’ apartment along with several other units. The plaintiffs’ carpets were wet, however the bathroom remained dry.   The building management planned to remove the wet carpets the next day. The day after the flooding, the plaintiff walked into his dry bathroom with wet slippers and fell. The slippers had become wet when he walked over the wet carpet into the bathroom. Plaintiff sued, alleging that the defendants were negligent in not completely removing the wet carpet on the day of the flooding.


We moved for summary judgment that there was no triable issue of fact since the plaintiffs had failed to establish that the defendants had breached a duty of care or that the defendants had actual or constructive notice of a dangerous or defective condition. The Court granted our motion for summary judgment finding that we had established that the defendants did not have actual or constructive notice of the alleged condition for a sufficient period of time to discover and remedy the condition.


The plaintiff appealed to the Appellate Division Second Department


The Second Department affirmed the dismissal. The Second Department found ”the defendants established their prima facie entitlement to summary judgment as a matter of law by demonstrating that they did not create the allegedly dangerous condition and that it did not exist for a sufficient length of time for them to remedy it”. The Second Department found that the plaintiff had failed to raise a triable issue of fact and concluded that the Supreme Court had properly granted the defendants motion for summary judgment dismissing the complaint.


Once again, notice of a defect is crucial to a plaintiff’s cause of action. There should be no hesitancy in moving for summary judgment whenever the facts show that defendants did not have notice. To fail to do so only gives plaintiff’s reason to bring meritless claims.


Should you have any questions, please call.


Thomas M. Bona