Wilson v New York City Tr. Auth.

2009 NY Slip Op 07755 [66 AD3d 602]

October 29, 2009

Appellate Division, First Department

As corrected through Wednesday, December 9, 2009

Ruby Wilson, Appellant, v New York City TransitAuthority, Respondent.

—[*1]Andrew F. Plasse, New York, for appellant. Wallace D. Gossett, Brooklyn (LawrenceHeisler of counsel), for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered April 9, 2008, whichgranted defendant's motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.

In opposition to defendant's prima facie showing of entitlement to judgment as a matter oflaw, plaintiff offered nothing more than belated speculation that her trip and fall was caused byovercrowded conditions on the stairway to the subway. Plaintiff, who repeatedly denied knowingthe reason for her fall, failed to present any evidence that defendant's negligence had caused herinjuries (see Daniarov v New York CityTr. Auth., 62 AD3d 480 [2009]; Rudner v New York Presbyt. Hosp., 42 AD3d 357 [2007]). Theassertion that overcrowded conditions formed the basis of liability was not articulated in hernotice of claim, thereby precluding her from raising this new theory in opposition to the motionfor summary judgment (see Sutin vManhattan & Bronx Surface Tr. Operating Auth., 54 AD3d 616 [2008]).Concur—Sweeny, J.P., Buckley, DeGrasse, Freedman and Abdus-Salaam, JJ.