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Plaintiff fails to rebut defendant’s prima facie showing that it did not cause or know about the hazard that led to plaintiff’s injury – Reece v. City of N.Y., 2010 NY Slip Op 31655 (N.Y. Sup. Ct., 2010)


In Reece v. City of N.Y., the court considered the question of what the plaintiff must show to prove that a defendant had sufficient notice of a hazard to be liable for injuries caused by the presence of that hazard.

As Reece, the plaintiff, stepped on the curb at the corner of Water and Wall Streets in Manhattan, she slipped and fell on a blob of grease and suffered an injury. Alliance, a not-for-profit business improvement district organization, was responsible for cleaning the sidewalk at the location of the accident. Alliance contracted the cleaning to Onesource. Reece filed a personal injury claim against Alliance, Onesource, and the City of New York.

The defendants filed a motion for summary judgment asking that the complaint against all of them be dismissed. Under New York law, the burden is on the defendant to prove that they are entitled to summary judgement. This means that the defendant must make a prima facie showing that it did not cause the dangerous condition that led to the plaintiff’s injuries, and that it did not have actual or constructive knowledge of the dangerous condition. If the defendant does not make a prima facie showing then the court will deny its motion for summary judgement dismal of the case.

Here, the defendants argued that the plaintiffs failed to state or offer evidence that any of the defendants did something to cause the dangerous condition of the blob of grease. In addition, the complaint did not make an allegation or offer preliminary proof that any of the defendants had actual or constructive notice that a dangerous condition existed or that the defendants had notice of the dangerous condition but failed and refused to remedy the dangerous condition which caused the plaint to slip and fall and suffer an injury. “Constructive notice” means that the hazard was visible and apparent, and that it was there long enough for the defendant or it its employees to have noticed it. For example, the documents that were submitted to the court do not show any information related to complaints to the defendants about the blob of grease, debris, or oil spills. Even the plaintiff admitted that although she saw garbage cans near the spot, she did not notice any spills of oil or debris prior to her fall.

Thus, the court agreed with the defendants that the plaintiffs failed to present evidence that tended to show that the defendants caused the hazard or had actual or constructive notice of it. Because the defendants met its burden of a providing a prima facie showing that they did not cause the hazard and that they did not have knowledge of it, the burden shifted to the plaintiff to submit evidence to rebut the evidence presented by the defendants.

The plaintiff did not submit any evidence to rebut the evidence presented by the defendants. There is just no way to be sure how the grease came to be on the sidewalk. Any attempt at explaining how the grease got there would be mere speculation and this is not sufficient basis for liability to attach. Consequently, the Court granted the defendants’ motion for summary judgement dismissing the complaint against all the defendants.

As Reece v. City of N.Y. shows, in order to sustain a premises liability claim against a property owner, a plaintiff must do more than show that he or she was injured on the property of the defendant. The plaintiff must produce evidence that the defendant created the hazardous condition, or that the defendant failed to timely cure a hazardous condition that it knew about or should have known about.

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