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BEHRENS v. NORTH MERRICK FRUITS, INC. (Index No. 6861/14) (March 22, 2017)

April 28, 2017 • Posted By Maggie McGannon • Insurance Coverage


In this personal injury action grounded in premises liability, plaintiff alleged that as she exited defendant’s store she fell while pushing a heavily laden shopping cart. She argued that the slope of the store’s exit ramp “was unreasonably steep and unsafe and caused her to fall.” The Appellate Division affirmed the Supreme Court’s grant of summary judgment to defendant and the denial of the plaintiff’s cross motion for leave to supplement or to amend her bill of particulars.

The Appellate Division reiterated the longstanding rule that a property owner has a duty to maintain his or her property in a reasonably safe condition in view of all the circumstances, including (1) the likelihood of injury to others; (2) the seriousness of the injury; and (3) the burden of avoiding the risk. On defendant’s motion for summary judgment, the defendant property owner has the initial burden of making a prima facie showing that (1) it did not create the allegedly dangerous or defective condition and (2) it did not have actual or constructive notice of its existence. As defendant submitted evidence satisfying this burden and plaintiff failed to raise a triable issue of fact in opposition, summary judgment in favor of defendant was proper.