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Second Dept. Subverts Meaning of “Constructive Notice”

Posted by Andrew J. Barovick | Feb 01, 2009 | 0 Comments

In a case decided on January 27, 2009, Maldonado v. Novartis Pharmaceutical Corp. , Novartis seems to have come out on top, to the disappointment of plaintiff, Frank Maldonado, thanks to an unusually harsh application of the concept of constructive notice. 

Maldonado endured serious injuries after slipping and falling on snow and ice on a metal grate covering a storm drain on Novartis's property.  In opposing Novartis's summary judgment motion, plaintiff presented evidence that he had made prior complaints regarding ice on the storm drain area, and that there had been a previous slip and fall suffered by a co-worker two years earlier.  That was not enough for the Second Department, however, which found that such evidence showed “only that Novartis may have had a general awareness (italics added) that ice accumulated on the storm drains, which is insufficient to constitute actual notice thereof.”

In support of its decision, the Court relied on a Court of Appeals case, Solazzo v. New York City Transit Authority , 6 N.Y.3d 734 (2005).   In that slip and fall case, plaintiff had sought to establish notice regarding his fall in a subway station by asserting that the Transit Authority was aware of a recurring hazardous condition on its subway steps and platforms.  The Court of Appeals deemed such a “general awareness” of wetness during inclement weather to be insufficient to show constructive notice, as it was not specificically related to plaintiff's injury. 

But Solazzo does not support the Second Department's decision in Maldonado , because Maldonado and his lawyers were quite specific in describing the elements of their claimed constructive notice.  Describing the evidence presented by plaintiff in Maldonado as something that could only have provided Novartis with a “general awareness” is factually inaccurate, and overly generous to Novartis.  It also lays the foundation for decades of “bad law” which will be premised on this decision, which will deprive untold numbers of plaintiffs with legitmate claims from just compensation.

Not even the Second Dept. case cited to by the Court, Perlongo v. Park City 3 & 4 Apts., Inc.  , 31 A.D.3d 409, 411 (2d Dept. 2006) actually supports this decision. In Perlongo , plaintiff slipped and fell on accumulated water in the basement of his apartment building.  The Court found a lack of constructive notice on defendant's part, since the evidence showed nothing more than defendant's general awareness that water might be tracked in when it rained.  Based on this finding, among others, the Court granted defendant's summary judgment motion.  Once again, this case does not support the Court's decision in Maldonado , where there was factually so much more than a mere “general awareness.”

So, what's the lesson here?  Is this an isolated poor decision, or a trend toward valuing the bank accounts of Big Pharma over the rights of individual plaintiffs?  We'll have to watch and see.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

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