| Ana R. v New York City Hous. Auth. |
| 2012 NY Slip Op 03619 [95 AD3d 981] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Ana R., Appellant, v New York City Housing Authority,Respondent. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Steven B. Prystowsky of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), datedFebruary 1, 2011, as denied that branch of her motion which was to compel the defendant toproduce records of inspection and repairs related to a fire that took place in the stairwell of thedefendant's building, and granted that branch of the defendant's motion which was to preclude theplaintiff from asserting, as a theory of liability, that the condition of the stairwell and nearby areawas a contributing factor to her injuries.
Ordered that the order is affirmed insofar as appealed from, with costs.
In a notice of claim dated November 4, 2004, the plaintiff alleged that on August 31, 2004,she was sexually assaulted near the 10th floor elevator of the defendant's building by severalperpetrators "who gained entrance into said building as the result of a lack of security andsupervision through the front entrance of said building which was unlocked and unsecured at thetime." The plaintiff subsequently commenced this action to recover damages for personal injuriesarising out of the sexual assault.
The Supreme Court properly denied that branch of the plaintiff's motion which was tocompel the defendant to produce records of inspection and repairs related to a fire that took placein the stairwell of the defendant's building, and properly granted that branch of the defendant'smotion which was to preclude the plaintiff from asserting, as a theory of liability, that thecondition of the stairwell and nearby area was a contributing factor to her injuries. "[A] partymay not add a new theory of liability which was not included in the notice of claim" (Semprini v Village of Southampton, 48AD3d 543, 544 [2008]; see Gabrielv City of New York, 89 AD3d 982, 983 [2011]; O'Connor v Huntington U.F.S.D, 87 AD3d 571 [2011]). Here,neither the plaintiff's notice of claim nor the plaintiff's General Municipal Law § 50-hexamination testimony put the defendant on notice of the plaintiff's allegation that the conditionof the building's stairwell and nearby area, which resulted from a fire that took place in thatstairwell, contributed to her injuries (seeManns v New York City Tr. Auth., 50 AD3d 860, 861 [2008]; Monmasterio v New York City Hous.Auth., 39 AD3d 354, 355-356 [2007]; White v New [*2]York City Hous. Auth., 288 AD2d 150 [2001]). Angiolillo,J.P., Lott, Roman and Miller, JJ., concur.