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![]() NYC showed it did not receive prior written notice of the ice plaintiff slipped on while leaving a construction site but did not affirmatively prove it did not immediately create a dangerous condition by plowing snow into mounds and not applying salt/sand to the walkway. The lower court found NYC did not meet its burden without showing it did not create the condition but the Second Department found NYC met its burden, shifting the burden of proving the exception to plaintiff. Plaintiff’s expert’s opinion based on an inspection 2-years after the incident was conclusory and speculative, failing to raise an issue of whether NYC created the condition. Defendant-contractors’ met their burden for summary judgment on proof plaintiff was not a party to their contracts, shifting the burden of showing an Espinal exception to plaintiff and plaintiff failed to raise an issue on any of the Espinal exceptions. Smith v City of New York ✉ Comment: This case sets a broad rule for the shifting of burden of proof on summary judgment motions that will likely not be limited to instances of prior written notice and Espinal exceptions. |
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