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PERSONAL INJURY, MUNICIPAL LAW, EVIDENCE, CIVIL PROCEDURE.
In This Slip-and-Fall Case Against NYC, at the Summary Judgment Stage, Once the City Demonstrates It Does Not Have Written Notice of the Condition That Caused the Fall, the Plaintiff Must Come Forward With Evidence That an Exception to the Written-Notice Requirement Applies, Even If, as Here, the Complaint Alleges No Exception Applies; Case Law to the Contrary Should No Longer Be Followed
The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller, clarified the burdens of proof at the summary judgment stage where the municipality demonstrates it did not have written notice of the condition that allegedly caused plaintiff’s slip and fall. Once the city demonstrates a lack of written notice, the plaintiff must come forward with proof of an applicable exception to the written-notice requirement, even where, as here, the complaint alleged no exception applies. Precedent to the contrary should no longer be followed. Smith v. City of New York, 2022 N.Y. Slip Op. 05226, Second Dept 9-21-22