Lempert v.  Steinberg & Pokoik Mgmt. Corp. is a recent decision in which the New York Court of Appeals decided the appeal in a Memorandum Decision.  At first blush the decision appears to be a garden-variety premises liability decision; however, I see it as an important decision on circumstantial evidence.  The key is in the underlying Appellate Division, First Department decision.

The plaintiff slipped and injured herself in the defendants’ apartment building.  She claimed that there was grainy, granular particles on the lobby floor where she slipped.  The defendants demonstrated that, after the completion of discovery, there was no evidence that the defendants had either actual or constructive notice of the granular accumulation on the floor prior to the accident, nor was there any evidence that the defendants had created the condition. With regard to notice, none of the deposed witnesses had noticed the accumulation in question before the accident, nor had any of such witnesses complained about it or received a complaint about it.

In opposition to the defendants’ summary judgment motion, the plaintiff essentially conceded that there was no evidence that the defendants had had actual or constructive notice of the condition.  The plaintiff argued, however, that there was evidence that the defendants had created the condition.  Such evidence was said to consist of the plaintiff’s affidavit stating as follows: (1) during the weekend of March 15-16, 2003, she had been in the building, and had seen mats on the floor of the lobby; (2) when she returned to the building on Monday, March 17, the day of the accident, the mats had been removed; (3) it is the plaintiff’s "understand[ing]" that when the defendants remove the mats from the lobby, the mats are turned over and rolled up, "so that all of the dirt, dust and debris that collects in the grooves of the mats falls onto the floor"; (4) the plaintiff "further understand[s] that the cleaning of the floor after the mats are rolled up . . . does not occur until the evening when a cleaning crew comes in."  Based on the foregoing, the plaintiff concluded: "Accordingly, it is my belief and understanding that based upon the defendants’ normal course of conduct, they placed the mats on the lobby floor before the weekend and those mats remained on the floor throughout the weekend.  At some time before I fell, the mats were rolled up and in the usual manner during which the debris on the mats was dumped on the floor where it was present when I entered the building. That debris remained in the area in and about the elevator banks, causing me to fall and shatter my wrist."

The Majority’s opinion in the First Department determined that the plaintiff’s theory was pure guesswork and speculation and, thus, insufficient to defeat the defendants’ summary judgment motion.  However, Justices Mazzarelli and Saxe reasoned that summary judgment should not be granted because the circumstantial evidence was sufficient to raise a genuine material issue of fact as to whether the defendants created the dangerous condition.  They reasoned that the plaintiff’s observations provided enough to arrive at the logical inference that the defendants created the dangerous condition.  The Court of Appeals Majority agreed, without stating its reasons but presumably agreeing that the circumstantial evidence was enough to raise a triable issue of fact.  Judges Rosenblatt, Read and Smith disagreed and would have granted the summary judgment motion in the defendants’ favor.