Plaintiff’s EBT Testimony in Slip-in-Fall Case Allows for Case Dismissal

In Zhu v. Huang (2025 NY Slip Op 04746), the Appellate Division, Second Department recently reversed a lower court’s order that denied the defendants’ motion for summary judgment in a slip-and-fall case. The plaintiff had commenced the action to recover damages for personal injuries she allegedly sustained after slipping on liquid while descending an interior staircase at the defendants’ premises.

According to her deposition testimony, the plaintiff had used the staircase earlier that morning without observing any liquid. After spending 15–20 minutes on a phone call during which she saw two individuals carrying drinks descend the same staircase, she slipped and fell on what she believed to be coffee or tea. The defendants moved for summary judgment, arguing that they neither created the hazardous condition nor had actual or constructive notice of it. The Supreme Court denied the motion, and the defendants appealed.

The Appellate Division, Second Department reversed the lower court’s order, stating: “In a slip-and-fall case, a defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence.” The Court found that the defendants met this burden by submitting the plaintiff’s own deposition testimony, which demonstrated a lack of evidence that the defendants created or had notice of the liquid on the stairs.

Particularly, the plaintiff admitted she had not seen any liquid on the stairs earlier and only speculated about its origin. The Court noted that the plaintiff “failed to raise a triable issue of fact” in opposition to the motion, and therefore, summary judgment should have been granted.

Salvatore R. Marino, Esq.