| Semprini v Village of Southampton |
| 2008 NY Slip Op 01326 [48 AD3d 543] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Dina Semprini, Appellant, v Village of Southampton,Respondent, et al., Defendants. |
—[*1] Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order andjudgment (one paper) of the Supreme Court, Suffolk County (Costello, J.), entered April 3, 2007,which, upon a decision of the same court dated December 5, 2006, granted the motion of thedefendant Village of Southampton for summary judgment dismissing the complaint insofar asasserted against it, and dismissed the complaint insofar as asserted against that defendant.
Ordered that the order and judgment is affirmed, with costs.
The defendant Village of Southampton (hereinafter the Village) made a prima facie showingof entitlement to judgment as a matter of law by demonstrating that it had no prior written noticeof the allegedly defective curb condition, as required by Southampton Village Code §95-25 (see Amabile v City of Buffalo, 93 NY2d 471 [1999]; Lawler v City of Yonkers, 45 AD3d813 [2007]; Koehler v IncorporatedVil. of Lindenhurst, 42 AD3d 438 [2007]; see generally Alvarez v Prospect Hosp.,68 NY2d 320 [1986]). In opposition to the Village's motion, the plaintiff conceded that therehad been no such notice. However, she sought to demonstrate that an exception to the writtennotice rule applied, by attempting to raise a triable issue of fact as to whether the Village createdthe alleged defect through an affirmative act of negligence (see Oboler v City of New York, 8 NY3d 888, 889-890 [2007];Amabile v [*2]City of Buffalo, 93 NY2d at 474). Shefailed to do so (see Kravatz v County ofSuffolk, 40 AD3d 1042 [2007]). The plaintiff did not allege the affirmative negligencetheory of liability upon which she now relies in her notice of claim or complaint, but insteadwaited until approximately 20 months after the accident to do so, in her bill of particulars. Thatwas improper, as a party may not add a new theory of liability which was not included in thenotice of claim (see Monmasterio v NewYork City Hous. Auth., 39 AD3d 354, 355-356 [2007]; Lopez v New York City Hous. Auth.,16 AD3d 164, 165 [2005]). The plaintiff never sought leave to serve a late notice ofclaim pursuant to General Municipal Law § 50-e (5), containing her new theory, and it wasnot asserted until after the one-year-and-90-day statute of limitations period for a late noticeexpired (see Mahase v Manhattan &Bronx Surface Tr. Operating Auth., 3 AD3d 410, 411 [2004]). The plaintiff's suggestionthat the Supreme Court erred in not allowing her to correct her notice of claim pursuant toGeneral Municipal Law § 50-e (6) is without merit. She never sought leave to do so, and inany event, a request would have been futile since § 50-e (6) allows good-faith,nonprejudicial technical changes, but not substantive changes in the theory of liability (see Mahase v Manhattan & Bronx SurfaceTr. Operating Auth., 3 AD3d 410, 411 [2004]).
Accordingly, the Supreme Court correctly granted the Village's motion for summaryjudgment dismissing the complaint insofar as asserted against it.
In light of the foregoing determination, we need not address the parties' remainingcontentions. Rivera, J.P., Ritter, Dillon and Carni, JJ., concur.