Mercer v. City of New York

OPINION OF THE COURT 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 plaintiffs 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 AD2d 246, 249, affd for reasons stated below 64 NY2d 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 NYCRR 500.4), order affirmed, with costs, in a memorandum.