Viceroy v. City of Yonkers

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Donovan, J.), entered February 15, 2001, which, upon the granting of the defendant’s motion to dismiss the complaint for failure establish a prima facie case, made at the close of the plaintiff’s evidence, dismissed the complaint. Ordered that the judgment is affirmed, with costs. A defendant will not be held liable for a dangerous or defective condition existing on its property unless there is evidence that it created the condition, or had actual or constructive notice of its existence and a reasonable time to remedy the defect (see, Brown-Phifer v Cross County Mall Multiplex, 282 AD2d 564, lv denied 96 NY2d 721; Goldin v Riker, 273 AD2d 197). The Supreme Court properly dismissed the plaintiff’s complaint at the close of his case-in-chief because there was insufficient evidence submitted to demonstrate that the defendant either created the alleged dangerous condition or had notice of it. The plaintiff’s claim that the Supreme Court erred in holding that the doctrine of assumption of the risk provided an additional basis for dismissal is not dispositive in light of the plaintiff’s failure to make out a prima facie case of negligence in the first instance. Ritter, J. P., H. Miller, Feuerstein and Prudenti, JJ., concur.