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November 18, 2022

Moving Defendant Relying on a Complete Defense Need Not Disprove Every Exception

In Smith v. City of New York1,  Jeri Smith sued several defendants, including the City of New York, alleging she slipped and fell on black ice as a result of negligent snow remediation at a premises owned by the city. The city moved for summary judgment on the grounds that it did not have the required prior written notice of the dangerous condition as required by the New York City Administrative Code.

The Supreme Court, Queens County denied the city’s motion for summary judgment concluding that, although the city established that it did not have written notice of the claimed condition, it failed to prove that it did not affirmatively create the alleged dangerous condition, a recognized exception to the prior written notice rule. Having found that the city failed to carry its initial burden to show its prima facie entitlement to judgment as a matter of law, the court denied the motion without regard for the sufficiency of the plaintiff’s opposition.   

The city appealed, arguing that it met its burden when it established the absence of prior written notice under the Administrative Code and that the plaintiff in opposition failed to establish an issue of fact regarding an applicable exception to the notice requirement. 

The Second Department agreed with the city’s position and granted the city’s motion for summary judgment holding that the city sustained its initial burden for dismissal of the negligence claim and the plaintiff failed to raise a triable issue regarding whether the city created the alleged condition. Analyzing decades of case law, the court explained that when a defendant seeking summary judgment establishes a complete defense, such as failure to comply with the prior written notice rule, it has meet its initial burden on the motion and need not also disprove the exceptions that may apply to the defense. The court contrasted motions based on a complete defense, i.e., statute of limitations or res judicata, with cases in which a moving defendant must address and rebut every allegation of liability in order to meet its burden on the motion.  

This case highlights the necessity for practitioners to understand and follow the nuanced rules of summary judgment motion practice, which vary according to the causes of action and claims asserted in the pleadings and facts fleshed out in discovery.

If you have questions regarding the content of this alert, please contact Amanda Miller, associate, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; or another member of the firm’s Torts & Products Liability Defense Practice Area.

  1Jeri Smith v. City of New York, et al., 2022 NY Slip Op 05226. 


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