Simmons v. Metropolitan Life Insurance — 84 N.Y.2d 972

Majority

p. 972

[646 NE2d 798, 622 NYS2d 496]

Lige Simmons et al., Appellants, v Metropolitan Life Insurance Company, Defendant and Third-Party Plaintiff-Respondent. National Cleaning Contractors Division of Kinney National Services, Inc., Third-Party Defendant-Respondent.

Decided December 13, 1994

p. 973

APPEARANCES OF COUNSEL

Seligson, Rothman & Rothman, New York City (Martin S. Rothman of counsel), for appellants.

Carol R. Finocchio, New York City, for third-party plaintiff-respondent.

Michael Majewski, Mineóla, for third-party defendant-respondent.

OPINION OF THE COURT

Memorandum.

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

The evidence presented at trial, even when considered in a light most favorable to plaintiffs, fails to establish a prima facie case of negligence. Although plaintiffs presented evidence that icy patches had been noticed weeks prior to the accident, no testimony was introduced that defendant was notified of these icy conditions. Additionally, no evidence was introduced as to the origin of the patch of ice on which plaintiff allegedly slipped and whether defendant had sufficient time to remedy the dangerous condition. The testimony that it had snowed a week prior to the accident was insufficient to establish notice because no evidence was introduced

p. 974

that the ice upon which plaintiff allegedly fell was a result of that particular snow accumulation. In light of the record evidence, the Appellate Division properly held that the jury’s conclusion that defendant had constructive notice was irrational and based on pure speculation.

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.