Constructive Notice, Failure to Inspect, and Jury Deference in Premises Cases: Commentary on Selis v. Town of North Hempstead

1. Introduction

Selis v. Town of North Hempstead, 2025 NY Slip Op 07326 (2d Dept, Dec. 24, 2025), is a premises liability appeal arising from a trip-and-fall incident in a municipal senior center. The Appellate Division, Second Department, affirms a jury verdict and a judgment exceeding $1.3 million in favor of the plaintiff, Gail Selis, against the Town of North Hempstead, the owner and maintainer of the Port Washington Senior Center.

The decision does not revolutionize New York premises law, but it does three important things:

It re-emphasizes the high threshold for setting aside a jury verdict under CPLR 4401 and 4404(a).
It clarifies that constructive notice can be inferred from an obvious, long-standing defect, established through testimony, photographs, and proof that the defendant did not conduct reasonable inspections.
It underscores that comparative negligence is rarely resolved as a matter of law and will almost always be left to the jury.

This commentary analyzes the court’s reasoning, the precedents it relies on, and the opinion’s implications for premises liability—particularly for municipal property owners—and for trial and appellate practice in New York.

2. Summary of the Opinion

The plaintiff, a user of the Port Washington Senior Center, claimed she fell because of a damaged carpet in a shared office within the Center, which is owned and maintained by the Town of North Hempstead. She sued for personal injury damages, alleging that the Town was negligent in permitting a dangerous condition to exist.

The case was tried in a bifurcated trial:

Phase 1 – Liability: The jury determined whether the Town was negligent and whether the plaintiff was comparatively negligent.
Phase 2 – Damages: Only after liability was found did a second jury phase fix the plaintiff’s damages.

At the close of the plaintiff’s liability case, the Town moved under CPLR 4401 for judgment as a matter of law, arguing that the plaintiff had failed to prove the Town had constructive notice of the carpet defect. The trial court reserved decision. The Town did not renew that motion at the close of all the evidence.

The liability jury:

Found the Town negligent.
Found the Town’s negligence was a substantial factor in causing the plaintiff’s accident.
Found the plaintiff was not comparatively negligent.

After verdict, the Town moved under CPLR 4404(a) to:

Set aside the liability verdict; and
Obtain judgment as a matter of law dismissing the complaint.

The Supreme Court (Muraca, J.) denied that motion (and, “in effect,” the earlier, reserved 4401 motion as well). The damages phase produced a verdict of $1,324,683.82, and judgment was entered against the Town.

On appeal, the Town contended essentially:

The plaintiff failed to establish constructive notice of the carpet defect, so there was no prima facie case.
The jury’s finding that the plaintiff was free from comparative negligence was against the weight of the evidence.

The Second Department affirmed in full:

It held the verdict was not “utterly irrational” and could be reached by a fair interpretation of the evidence.
It held there was a valid line of reasoning and permissible inferences by which the jury could find constructive notice.
It upheld the finding of no comparative negligence as a proper exercise of the jury’s fact-finding function.

3. Detailed Analysis of the Opinion

3.1 Procedural Posture and Standards of Review

Two procedural devices are central to this case:

CPLR 4401 – motion for judgment as a matter of law made during trial (traditionally called a “directed verdict”).
CPLR 4404(a) – post-trial motion to set aside the verdict and either order a new trial or direct judgment for the movant.

The court quotes and applies the well-settled standard:

“A motion pursuant to CPLR 4401 or 4404 for judgment as a matter of law may be granted only where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party.” (quoting McConnell v County of Nassau, 228 AD3d 649, and Caliendo v Ellington, 104 AD3d 635.)

For the Appellate Division, the standard is even more deferential:

A jury verdict is insufficient as a matter of law only if it is “utterly irrational” (Killon v Parrotta, 28 NY3d 101).
A verdict is set aside as against the weight of the evidence only if the jury could not have reached it by any fair interpretation of the evidence.

The court reiterates:

To conclude that a verdict is utterly irrational, the court must determine that “there is simply no valid line of reasoning and permissible inferences which could possibly lead a rational person to the conclusion reached by the jury.” (Killon citing Campbell v City of Elmira, 84 NY2d 505.)

Additionally, in deciding such motions, the court must:

View the evidence in the light most favorable to the nonmoving party (here, the plaintiff); and
Give that party the benefit of all reasonable inferences from the evidence.

These principles, drawn from McConnell, Hamilton v Rouse, Rhabb v New York City Hous. Auth., and Peterson v MTA, collectively underscore the court’s strong reluctance to disturb a jury’s verdict once evidence supports a rational interpretation in favor of the verdict.

Applied to this case, the court frames its role narrowly: the question is not whether the appellate judges might have reached the same factual conclusion, but whether any rational jury could have reached this conclusion on this record. The court’s answer is clearly yes.

3.2 Substantive Premises Liability Framework

The court restates the familiar rule governing premises liability:

“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that the landowner affirmatively created the condition or had actual or constructive notice of its existence.” (Marazita v City of New York, 202 AD3d 951; see also Sloan v 2016 Bedford Kings Corp.)

Since there is no discussion of affirmative creation or actual notice in the opinion, the Town’s potential liability hinged on constructive notice.

The standard is likewise settled:

A defendant has constructive notice when a condition is:

Visible and apparent, and

Has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it.

(Buckshaw v Oliver, 197 AD3d 691; Fortune v Western Beef, Inc.; Reed v 64 JWB, LLC.)

Key doctrinal augmentations in the opinion:

Proof via photographs:
The court reaffirms that constructive notice may be established through photographic evidence if a jury can infer from the appearance of the defect that it must have developed over a lengthy period:
“Constructive notice may be established with photographic evidence when the jury can infer from the appearance of the allegedly defective condition that the condition was visible and ‘had to have come into being over such a length of time that knowledge thereof should have been acquired by the defendant in the exercise of reasonable care’” (Taylor v New York City Tr. Auth., 48 NY2d 903).
Failure to inspect as negligence:
The court emphasizes that where a reasonable inspection would have disclosed the defect, the failure to inspect itself is negligent:
“If a reasonable inspection would have disclosed the defect, the failure to conduct a diligent inspection itself constitutes negligence” (citing Reed v 64 JWB, LLC and Lee v Bethel First Pentecostal Church of Am., Inc.).
This takes the analysis a step beyond “notice”: even if a defendant argues it had no awareness of the defect, it may nonetheless be liable because a reasonable inspection would have revealed what was plainly there.

These points, taken together, form the substantive backbone of the court’s analysis of the Town’s liability.

3.3 Establishing Constructive Notice: Testimony, Photos, and Lack of Inspection

The appellate court applies the above doctrines to the specific evidentiary record.

3.3.1 Evidence of a visible and apparent defect

Several witnesses testified that the carpet defect was visible:

A cleaner employed by the Center; and
Two Town employees responsible for maintenance.

All testified that when they went to the plaintiff’s office, they saw the condition of the carpet and that the defect was apparent. From this, the court holds the jury could reasonably infer that:

The defect was obvious to anyone paying reasonable attention in the area; and
A proper inspection of that space would have revealed the problem.

The court specifically ties this to the rule that where a defect is discoverable on reasonable inspection, failure to conduct such inspection is negligence. The explicit mention that the defect was “apparent” reinforces the “visible and apparent” prong of constructive notice.

3.3.2 Evidence of duration and the role of photographs

The opinion notes that the jury also had photographs of the defective carpet taken around the time of the accident. Combined with witness testimony, these photographs allowed the jury to conclude that:

The defective condition had existed for a substantial period before the accident.
The condition had the sort of worn, deteriorated appearance that does not arise overnight.

The court cites Blake v Albany, 48 NY2d 875, and DeGiacomo v Westchester County Healthcare Corp., 295 AD2d 395, aligning this case with prior decisions that allow juries to infer a defect’s age and thus constructive notice from photographs depicting longstanding deterioration.

3.3.3 Proof of inadequate inspection practices

The evidence also showed that:

The Town did not conduct regular inspections of the interior of the Center. One Town employee expressly so testified.
Town employees had not been inside the plaintiff’s office for several years before the accident.

This is critical for two reasons:

It bolsters the inference that the defect existed for a significant period—if staff had not visited the office in years, yet when they did the defect was obvious, it is reasonable to infer that the condition developed and persisted over time.
It directly implicates the duty to conduct reasonable inspections: failing to inspect an area used by occupants for years can itself be a basis for finding negligence when a visible defect is present.

The court contrasts this situation with Nelson v AMF Bowling Ctrs., Inc., 206 AD3d 929, by using “cf.” (“compare”)—implicitly indicating that in other cases, where a defendant has reasonable inspection practices and no clear evidence of duration or visibility, the outcome might be different. Here, the Town’s lack of any interior inspection program undermined its defense.

3.3.4 The Town’s own evidence reinforcing constructive notice

Notably, the court remarks that even the Town’s own evidence corroborated the plaintiff’s theory:

Town employees testified about the lack of regular inspection or routine maintenance of the Center’s interior.
They confirmed they had not been inside the plaintiff’s office for several years.

The appellate court emphasizes that this testimony supported the plaintiff’s position that the defect:

Was dangerous and apparent;
Existed for a sufficient time to be discovered; and
Would likely have been found through reasonable, regular inspections.

This is a powerful point: the decision shows how a defendant’s own witnesses can supply the missing links for constructive notice, particularly when they candidly describe lax inspection or maintenance practices.

3.4 Comparative Negligence: A Jury Question

The Town also challenged the jury’s determination that the plaintiff was not comparatively negligent. The court reaffirms two long-standing principles:

Comparative negligence is usually for the jury.
The court quotes Wartels v County Asphalt, 29 NY2d 372:
A determination of comparative negligence “is almost invariably a question of fact and is for the jury to determine in all but the clearest of cases.”
It also cites Ormond v MTA/New York City Tr. Auth., 210 AD3d 998, reinforcing that only in rare, exceptionally clear cases will a court disturb the jury’s assessment of a plaintiff’s contributory fault.
There was a valid line of reasoning supporting no comparative negligence.
The court notes that the jury could rationally find that the plaintiff acted reasonably under the circumstances and that her conduct did not contribute to the accident. It cites cases like Motelson v Ford Motor Co., 101 AD3d 957, and Mejia v City of New York, 33 AD3d 675, which similarly uphold jury determinations on comparative negligence.

The opinion does not recite the precise behavior alleged as negligent on the plaintiff’s part (e.g., not looking down, familiarity with the area, etc.), but by affirming the jury’s finding, it implicitly accepts that:

The evidence permitted the view that the plaintiff was using the space in a normal, reasonable manner; and
Any failure to avoid the defect was not so clear-cut as to justify overturning the jury’s conclusion.

In effect, the case reinforces the difficulty defendants face in asking appellate courts to revisit a jury’s comparative fault findings absent extreme facts.

3.5 Role of Precedents Cited

The opinion is heavily scaffolded by prior case law. The precedents serve three main functions: (1) defining standards for judgment as a matter of law and weight-of-evidence review; (2) framing premises liability and constructive notice; and (3) guiding comparative negligence analysis.

3.5.1 Standards for judgment as a matter of law and appellate review

McConnell v County of Nassau, 228 AD3d 649 and Caliendo v Ellington, 104 AD3d 635:
These cases are cited for the black-letter rule that a motion under CPLR 4401 or 4404(a) can be granted only where there is no rational process by which the jury could find in favor of the non-moving party.
Saintume v Lamattina, 192 AD3d 1156 and Brewer v Ross, 188 AD3d 780:
These reinforce and apply the same standard in different factual contexts (e.g., motor vehicle or negligence cases), supporting the court’s continuity in applying that narrow standard.
Killon v Parrotta, 28 NY3d 101:
A Court of Appeals decision, central here for the “utterly irrational” formulation and the requirement of a valid line of reasoning and permissible inferences to sustain a verdict. The Second Department closely tracks Killon’s wording.
Campbell v City of Elmira, 84 NY2d 505:
Cited within Killon, it originates the “valid line of reasoning and permissible inferences” test for sufficiency of the evidence to support a verdict.
Rhabb v New York City Hous. Auth., 41 NY2d 200:
An older but still authoritative statement on directed verdict standards; supports the principle that courts should not usurp the jury’s role where reasonable minds could differ.
Hamilton v Rouse, 46 AD3d 514 and Peterson v MTA, 155 AD3d 795:
Both underscore that in ruling on a motion for judgment as a matter of law, the court must view the evidence in the light most favorable to the nonmovant and give that party every favorable inference.
Salas v Bellair Laser Ctr., Inc., 185 AD3d 746:
Cited for the standard that a verdict should not be set aside as against the weight of the evidence unless it could not have been reached by any fair interpretation of the evidence, aligning with Killon.

Collectively, these cases support the Second Department’s tightening of the conditions under which defendants can overturn jury verdicts on appeal.

3.5.2 Premises liability and constructive notice

Marazita v City of New York, 202 AD3d 951 and Sloan v 2016 Bedford Kings Corp., 208 AD3d 1192:
These are cited to restate the basic elements of premises liability: a landowner’s liability requires proof of creation of the defect or actual or constructive notice.
Buckshaw v Oliver, 197 AD3d 691, Fortune v Western Beef, Inc., 178 AD3d 671, and Reed v 64 JWB, LLC, 171 AD3d 1228:
These articulate the two-part definition of constructive notice:
1. The condition must be visible and apparent; and
2. It must exist long enough to be discoverable with reasonable care.
Taylor v New York City Tr. Auth., 48 NY2d 903:
A leading Court of Appeals case confirming that photographic evidence can demonstrate a defect’s visibility and suggest that it developed over a significant period, supporting constructive notice.
Alcantara v New York City Tr. Auth., 140 AD3d 808 and DeGiacomo v Westchester County Healthcare Corp., 295 AD2d 395:
These apply Taylor to uphold inferences of constructive notice based on how defects appear in photographs.
Lee v Bethel First Pentecostal Church of Am., Inc., 304 AD2d 798:
Cited for the proposition that failure to perform reasonable inspections is itself negligence where an inspection would reveal the defect.
Nelson v AMF Bowling Ctrs., Inc., 206 AD3d 929:
Cited via “cf.” to distinguish that case’s facts, likely involving more robust inspection or lack of proof of duration/visibility, from the present case.
Blake v Albany, 48 NY2d 875:
Like Taylor, used to show that a defect’s appearance can indicate that it is longstanding, thereby supporting an inference of constructive notice.

Through this chain of precedents, the court firmly situates Selis within the mainstream of New York premises liability doctrine, particularly in its flexible approach to proving constructive notice.

3.5.3 Comparative negligence

Wartels v County Asphalt, 29 NY2d 372:
A foundational case for the principle that issues of comparative negligence are “almost invariably” jury questions.
Ormond v MTA/New York City Tr. Auth., 210 AD3d 998:
An Appellate Division case reiterating that appellate interference with a jury’s comparative negligence determination is justified only rarely.
Motelson v Ford Motor Co., 101 AD3d 957 and Mejia v City of New York, 33 AD3d 675:
Both used as examples where jury assessments of plaintiff conduct were upheld.

These authorities collectively support the court’s refusal to disturb the jury’s finding that the plaintiff was not negligent.

4. Complex Concepts Simplified

For clarity, this section briefly explains the major procedural and substantive concepts referenced in the opinion.

4.1 CPLR 4401 – Judgment as a Matter of Law During Trial

A motion under CPLR 4401 is made during trial, typically at the close of a party’s case or at the close of all the evidence. The moving party (here, the Town) argues that:

Even if the jury believes all evidence in favor of the opposing party,
There is no legally sufficient evidence from which a reasonable jury could find in that party’s favor.

If granted, the court takes the case away from the jury and enters judgment as a matter of law. If denied, the case goes forward for jury deliberation.

4.2 CPLR 4404(a) – Post-Trial Motion to Set Aside the Verdict

After a jury renders a verdict, a party can move under CPLR 4404(a) to:

Set aside the verdict as against the weight of the evidence; and/or
Seek judgment as a matter of law (again arguing insufficiency of evidence).

The same rigorous sufficiency standard applies: there must be no rational basis for the jury’s verdict. For “weight of the evidence,” the court can order a new trial if it finds that the jury’s conclusion could not be reached on any fair view of the evidence; but the standard is again highly deferential.

4.3 Constructive Notice

“Constructive notice” means the law treats the defendant as if it knew about the dangerous condition, even if it did not actually know, because:

The condition was visible and obvious, and
It lasted long enough that a reasonable property owner should have discovered and fixed it.

Constructive notice can be shown by:

Testimony from people who saw the defect;
Photographs showing wear, deterioration, or long-term conditions; and
Evidence of poor or non-existent inspection and maintenance practices.

4.4 Duty to Inspect

Property owners, including municipalities, must take reasonable steps to keep their property safe. This includes:

Inspecting common spaces and areas where people are expected to walk or work;
Doing so with some regularity; and
Documenting and remedying hazards found during those inspections.

If a simple, routine inspection would have revealed a defect, and the owner did not perform such inspections, that failure can be treated as negligence.

4.5 Bifurcated Trial

In a bifurcated trial, the case is split into two separate phases:

Liability phase: The jury decides who was at fault and whether that fault caused the accident.
Damages phase: Only if liability is found does the jury then decide how much money to award.

This structure often streamlines trials, especially when liability is contested and damages are substantial or complex.

4.6 Comparative Negligence

Under New York’s comparative negligence system:

A plaintiff’s recovery can be reduced if the plaintiff is partly at fault.
However, the plaintiff is not barred from recovery unless some special doctrine applies; their award is simply diminished by their percentage of fault.
Whether the plaintiff was careless, and to what degree, is typically a question for the jury.

5. Impact and Implications of the Decision

5.1 For Municipalities and Public Facility Owners

The most concrete lesson for municipalities and public facility owners is that:

Regular, documented interior inspections are critical.
Obvious defects in well-traveled or occupied areas will often lead to findings of constructive notice if they persist unchecked.

In Selis, the Town’s acknowledgment that:

It had no program of regular inspection or routine interior maintenance; and
Its employees had not visited the plaintiff’s office in several years;

effectively made it easier for the jury— and the appellate court — to find constructive notice and negligence. In practice, municipalities should:

Implement and enforce periodic inspection schedules for interior spaces, especially those used by vulnerable populations (such as seniors).
Maintain written records of inspections and repairs.
Ensure that staff responsible for maintenance are periodically present in all occupied spaces.

The opinion makes clear that the absence of such measures may itself be characterized as negligence.

5.2 For Plaintiffs’ Counsel in Premises Cases

The decision provides a roadmap for plaintiffs seeking to establish constructive notice:

Gather detailed testimony from employees, cleaners, and maintenance staff about:
- Whether the condition was visible;
- How long it appeared to have existed; and
- Inspection and maintenance routines (or lack thereof).
Secure photographs of the defect close in time to the accident, capturing:
- Wear patterns;
- Deterioration; and
- Any features suggesting a long-term condition.
Use defendants’ own witnesses to show:
- Infrequent or non-existent inspections; and
- A systemic failure to monitor interior spaces.

Selis confirms that such evidence, taken together, can easily supply a “valid line of reasoning” to uphold a jury verdict on appeal.

5.3 For Defendants and Defense Counsel

From a defense standpoint, Selis is a cautionary example of:

The risk in conceding poor inspection practices while simultaneously denying constructive notice.
The difficulty of overturning jury verdicts when the relevant standards (“no rational process,” “utterly irrational,” “no fair interpretation”) are so stringent.

In response, defense counsel in premises cases should:

Be prepared to show regular inspection and maintenance protocols, ideally supported by written logs or electronic records.
Carefully manage testimony about how often staff enter particular rooms or areas, ensuring that it does not create a picture of systemic neglect.
Recognize that appeals focused primarily on sufficiency of evidence or comparative negligence findings face long odds absent glaring factual gaps or contradictions.

5.4 Substantive Law: Incremental Clarification, Not a Sharp Break

Substantively, Selis does not create a novel doctrine. Rather, it:

Reinforces the established principles that:
- Constructive notice may be proved from the condition’s visible character and apparent age;
- Failure to conduct reasonable inspections in areas of regular use is negligent; and
- Comparative negligence is overwhelmingly a jury issue.
Applies those principles in the specific context of a municipal senior center’s interior maintenance and inspection practices.

The decision thus fits comfortably within the existing premises liability framework but gives it a pointed and practical application that future litigants and courts are likely to cite, particularly in cases involving public buildings and long-standing interior defects.

6. Conclusion

Selis v. Town of North Hempstead is a textbook example of how New York courts treat post-trial attacks on jury verdicts in premises liability actions and how constructive notice is established when interior defects are obvious, documented, and ignored.

Key takeaways include:

The extreme deference appellate courts show to jury verdicts under CPLR 4401 and 4404(a): a verdict will be overturned only if it is “utterly irrational” or cannot be supported by any fair interpretation of the evidence.
The reaffirmation that constructive notice may be inferred from:
- Visible, apparent defects;
- Evidence suggesting the condition developed over time (including photographs); and
- Proof that reasonable inspections were not performed, especially in regularly used areas.
The emphasis that comparative negligence is almost always a question for the jury and will not be disturbed lightly.

For municipalities and other property owners, the case underscores the necessity of meaningful inspection regimes and maintenance programs. For practitioners, it illustrates effective methods for proving — or contesting — constructive notice and for framing appellate arguments about sufficiency and weight of the evidence.

In the broader New York legal landscape, Selis stands as a strong, practical reaffirmation of existing premises principles, with a particular focus on the interplay between visible interior defects, failure to inspect, and jury deference in determining liability.