Gaeta v. City of New York
| Decision Date | 20 March 1995 |
| Citation | 624 N.Y.S.2d 47,213 A.D.2d 509 |
| Parties | Anthony GAETA, et al., Appellants, v. CITY OF NEW YORK, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Rayo & Rayo, Brooklyn (Mark J. Rayo, of counsel), for appellants.
Paul A. Crotty, Corp. Counsel, New York City (Kristin M. Helmers and Alan G. Krams, of counsel), for respondents.
Before BALLETTA, J.P., and THOMPSON, SANTUCCI, ALTMAN and HART, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Krausman, J.), dated June 24, 1993, which granted the defendants' motion to dismiss the complaint at the close of the plaintiffs' case.
ORDERED that the judgment is affirmed, with costs.
In order to establish a prima facie case of negligence, a plaintiff must demonstrate (1) the existence of a duty on the defendant's part as to the plaintiff, (2) a breach of this duty, and (3) an injury to the plaintiff as a result thereof (Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531). In order to prove a breach of duty in a slip and fall case such as the one at bar, the plaintiffs were required to show that the defendants created the condition which caused the accident or that the defendants had actual or constructive notice of the condition (see, Pirillo v. Longwood Assoc., 179 A.D.2d 744, 745, 579 N.Y.S.2d 120). The plaintiffs made no such showing, and thus the Supreme Court properly dismissed the plaintiffs' case for failure to prove a prima facie case of negligence against the defendants (see, Thomas v. New York City Tr. Auth., 194 A.D.2d 663, 664, 599 N.Y.S.2d 127; see also, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798 [1994]; Morales v. Foodways, Inc., 186 A.D.2d 407, 408, 589 N.Y.S.2d 6; Smith v. Wisch, 77 A.D.2d 619, 430 N.Y.S.2d 115).
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