Along with her “failure of proof” argument, Plaintiff also argues that because there was evidence of several other slips in the produce area of the store in the several months leading up to Plaintiff’s accident that she has demonstrated proof of a “recurring condition”.
This simplification completely misstates the law concerning what does or constitutes a “recurring condition”. Proof of a “recurring condition” in the first instance requires proof of the specific cause a recurring condition.
Thus Plaintiff blatantly misstates the holding of Maurer v. Tops Markets LLC 70 AD3d 1504, 895 NYS2d 617 (App. Div. 4th Dept. 2010) by arguing that “the court held testimony of store employees that there was a recurring condition of water on floor was sufficient to charge owner with constructive knowledge of each specific reoccurrence.”
In fact in Mauer the precise cause of a recurring condition was proven. As the Court wrote:
Indeed, plaintiff presented the testimony of several Tops employees who stated that there was a recurring condition of water on the floor in the floral department as a result of water dripping from flower bouquets. In light of the testimony that Tops had actual knowledge of a recurring condition of water on the floor in the area where plaintiff fell, Tops may be “ ‘charged with constructive notice of each specific reoccurrence of the condition’ ” (Chrisler v. Spencer, 31 A.D.3d 1124, 1125, 817 N.Y.S.2d 835; see Erikson v. J.I.B. Realty Corp., 12 A.D.3d 344, 345, 783 N.Y.S.2d 661; see generally Chianese v. Meier, 98 N.Y.2d 270, 278, 746 N.Y.S.2d 657, 774 N.E.2d 722).
This requirement of “preciness” is futher coupled with a requirement of a showing that the “chronic and ongoing condition” be left “routinely unaddressed” by a Defendant to constitute proof of a recurring condition.
The most often quoted case in this area is Lowe v. Spada 282 A.D.2d 815 722 N.Y.S.2d 820 (App. Div. 3rd Dept. 2001) where the Plaintiff was able to demonstrate proof of a recurring condition by showing that:
she slipped on a puddle in the precise area of the bathroom where there had been an ongoing and chronic problem with water puddles routinely left unaddressed by the maintenance company, facts which fall squarely within the realm of a recurrent dangerous condition.
Plaintiff has proof of neither of these prongs in this case.
WHEREFORE Defendant prays that it Summary Judgement Motion be granted in all respects.