| Sutin v Manhattan & Bronx Surface Tr. Operating Auth. |
| 2008 NY Slip Op 07032 [54 AD3d 616] |
| September 23, 2008 |
| Appellate Division, First Department |
| Myra Sutin, Respondent, v Manhattan and Bronx SurfaceTransit Operating Authority, Appellant. |
—[*1] Joelson & Rochkind, New York (Geofrey C. Liu of counsel), for respondent.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered on or about June 22,2007, which, denied defendant's motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
A triable issue of fact exists as to whether defendant breached its duty to plaintiff to stop thebus at a place from which she could safely disembark and leave the area since the parties offerconflicting accounts regarding the positioning of the bus in relation to the curb when it came to astop (see Malawer v New York City Tr.Auth., 6 NY3d 800 [2006], affg 18 AD3d 293 [2005]). Specifically, a triableissue of fact exists regarding how far from the curb the bus stopped.
We note, however, that plaintiff impermissibly raised a theory of liability in opposition to themotion that was not articulated in her notice of claim. The notice of claim states that the busdriver "failed to provide a safe location for passengers to exit"; her complaint contained asubstantially similar allegation. Nowhere in her notice of claim, complaint or bill of particularsdid plaintiff allege that the bus driver failed to "kneel," i.e., lower, the bus prior to letting her off.Moreover, plaintiff's General Municipal Law § 50-h hearing testimony makes plain thather theory of liability is that "the positioning of the bus," i.e., its proximity to the curb whenplaintiff disembarked, caused her trip-and-fall accident. Accordingly, plaintiff is precluded fromraising this new theory in opposition to the motion for summary judgment (see Mahase v Manhattan & Bronx SurfaceTr. Operating Auth., 3 AD3d 410 [2004]; see also Barksdale v New York City Tr.Auth., 294 AD2d 210 [2002] [Supreme Court correctly granted defendant's motion in limineto [*2]preclude plaintiff from offering evidence at trial respectingtheory of liability not set forth in notice of claim]). Concur—Lippman, P.J., Tom,Williams, McGuire and Freedman, JJ.