| Hubbard v City of New York |
| 2011 NY Slip Op 04632 [84 AD3d 1313] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Margaret Hubbard, Respondent, v City of New York,Appellant. |
—[*1] Steven Wildstein (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac], ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from a judgmentof the Supreme Court, Kings County (Schack, J.), entered January 4, 2010, which, upon a juryverdict on the issue of liability finding it 100% at fault in the happening of the accident, and uponthe denial of its motion pursuant to CPLR 4401 for judgment as a matter of law, is in favor of theplaintiff and against it in the total sum of $463,712.99.
Ordered that the judgment is reversed, on the law, with costs, the defendant's motionpursuant to CPLR 4401 for a judgment as a matter of law is granted, and the complaint isdismissed.
The plaintiff, Margaret Hubbard, commenced this action against the City of New York(hereinafter the City) as a result of an alleged trip-and-fall over a downed lamppost that was lyingin the gutter of a street and had not been visible to her due to significant snowfall. Her theory ofliability as alleged in her pleadings was that of negligence by the City in permitting the site wherethe accident occurred to remain in a dangerous condition. There was no allegation that the Citycaused the condition through an affirmative act of negligence. Almost six years later, this caseproceeded to trial, and following jury selection, the City made a motion to dismiss the complaintfor lack of prior written notice. The Supreme Court denied the motion and allowed the case toproceed.
During trial, the plaintiff for the first time presented evidence and argued that the City wasliable under a theory of an affirmative act of negligence. Specifically, the plaintiff's daughtertestified that 11 days prior to her mother's accident, she witnessed a New York City SanitationDepartment snow plow truck knock over the subject lamppost and then saw two sanitationworkers get out of the truck, pick up the lamppost, and move it into the gutter of the street.However, the plaintiff failed to present any evidence as to prior written notice. At the completionof the plaintiff's case, the City moved for judgment as a matter of law pursuant to CPLR 4401 onthe ground that the plaintiff failed to establish a prima facie case. It [*2]contended that it had not received prior written notice of the allegeddangerous condition. The Supreme Court denied the motion. The jury returned a verdict findingthe City 100% at fault in the happening of the accident and awarded damages. We reverse.
The trial court erred in allowing the plaintiff to proceed under an affirmative act ofnegligence theory of liability. This theory was not contained in either the plaintiff's pleadings orher bills of particulars. In fact, in its demand for a bill of particulars, the City explicitly asked theplaintiff to state if actual or constructive notice were claimed, and additionally, whether shealleged that the City created the condition. In her bill of particulars in response, she only statedthat actual and constructive notice were claimed. She did not claim that the City created thecondition.
As this was a new theory not previously disclosed, the City had no opportunity to prepare arebuttal. Accordingly, the trial court erred in allowing the plaintiff to assert this new theory ofliability for the first time at trial (see Thompson v New York City Hous. Auth., 212AD2d 775, 776 [1995]; see also Navarette v Alexiades, 50 AD3d 872 [2008]) and thiserror was not harmless (see Caccioppoli v City of New York, 50 AD3d 1079, 1080-1081[2008]).
"Pursuant to Administrative Code of the City of New York § 7-201 (c) (2), a plaintiffmust plead and prove that the City had prior written notice of a roadway defect, or dangerous orobstructed condition before it can be held liable for its alleged negligence related thereto"(Farrell v City of New York, 49 AD3d 806, 807 [2008]; see Administrative Codeof City of NY § 7-201 [c] [2]). "The Court of Appeals has recognized two exceptions tothis rule, 'namely, where the locality created the defect or hazard through an affirmative act ofnegligence' and 'where a special use confers a special benefit upon the locality' " (Leiserowitzv City of New York, 81 AD3d 788, 789 [2011], quoting Amabile v City of Buffalo,93 NY2d 471, 474 [1999]). Here, the plaintiff failed to present any evidence that the City hadprior written notice. Further, the plaintiff did not contend special use and, as aforementioned,should have been precluded from alleging an affirmative act of negligence theory. Accordingly,the Supreme Court should have granted the City's motion for judgment as a matter of lawpursuant to CPLR 4401.
In light of our determination, we need not address the parties' remaining contentions.Angiolillo, J.P., Florio, Belen and Roman, JJ., concur.