On May 1, 2019, Denise Bush won an appeal that reversed the lower court’s decision and granted summary judgment dismissing the plaintiff’s case in Chang v. Marmon Enterprises, 2019 WL 1926040 (2nd Dep’t 2019). The plaintiff claimed that she tripped and fell in the parking lot of the defendant’s store. Ms. Bush argued that the plaintiff’s case should have been dismissed because the plaintiff could not identify the cause of her fall without engaging in speculation and because the plaintiff otherwise failed to establish notice of the alleged defect. At deposition, the plaintiff testified that she “felt” something uneven beneath her feet and was not otherwise able to testify as to the appearance of the uneven surface or how long it had been there. Although the Second Department found that the plaintiff’s testimony was sufficient to identify the cause of her fall (and thus Defendant failed to establish its prima facie burden on the motion), the Second Department agreed with Ms. Bush that the plaintiff failed to establish notice of the an uneven surface and dismissed the case.
