Mercer v. City of New York

Full title: RAYMOND MERCER et al., Appellants, v. CITY OF NEW YORK, Respondent

Court: Court of Appeals of the State of New York

Date published: Jul 9, 1996

88 N.Y.2d 955 (N.Y. 1996)

647 N.Y.S.2d 159

670 N.E.2d 443

Opinion

Decided July 9, 1996

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, M. Randolph Jackson, J.

Rosenthal Druyan, Bronx (Alan Jay Binger of counsel), for appellants.

Paul A. Crotty, Corporation Counsel of New York City (Deborah R. Douglas and Kristin M. Helmers of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The evidence presented at trial, considered in the light most favorable to plaintiffs, fails to establish a prima facie case of negligence. Nothing in the record suggests that defendant either affirmatively created the particular pool of grease or oil alleged to have caused plaintiff's fall, or had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence ( Lewis v Metropolitan Transp. Auth., 99 A.D.2d 246, 249, affd for reasons stated below 64 N.Y.2d 670). Thus, the Appellate Division properly reversed the judgment in plaintiffs' favor and dismissed the complaint.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.