| Crew v Town of Beekman |
| 2013 NY Slip Op 02370 [105 AD3d 799] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Justin Crew et al.,Respondents-Appellants, v Town of Beekman, Appellant-Respondent, et al.,Defendants. |
—[*1] Farley & Kessler, P.C., Jericho, N.Y. (Richard L. Farley and DeSena & Sweeney,LLP [Shawn P. O'Shaughnessy], of counsel), for respondents-appellants.
In an action to recover damages for personal injuries, etc., the defendant Town ofBeekman appeals, as limited by its brief, from so much of an order of the Supreme Court,Dutchess County (Pagones, J.), dated September 26, 2011, as denied its motion forsummary judgment dismissing the complaint insofar as asserted against it, and theplaintiffs cross-appeal from so much of the same order as denied those branches of theircross motion which were for summary judgment on the issue of liability against thedefendant Town of Beekman, both on the merits and on the ground of spoliation ofevidence, to strike the answer of the defendant Town of Beekman on the ground ofspoliation of evidence, or, in the alternative, to direct that an adverse inference charge begiven at trial against the defendant Town of Beekman on the ground of spoliation ofevidence.
Ordered that the order is reversed insofar as appealed from, on the law, and themotion of the defendant Town of Beekman for summary judgment dismissing thecomplaint insofar as asserted against it is granted; and it is further,
Ordered that order is affirmed insofar as cross-appealed from, and it is further,
Ordered that one bill of costs is awarded to the defendant Town of Beekman.
This appeal arises from a one-vehicle accident which occurred on May 15, 2007, onHynes Road in the Town of Beekman. As a result of the accident, the infant plaintiffs,who were passengers in the vehicle, sustained injuries. On August 6, 2007, the infantplaintiffs, by their parents, and the parents, individually, served a notice of claim uponthe Town which stated, inter alia, that they sought "damages for negligence arising out ofthe use, operation, ownership, maintenance, custody, and control of Hynes Road."Thereafter, the plaintiffs commenced this action against the Town and others. The Townmoved for summary judgment dismissing the complaint insofar as asserted against it,arguing, among other things, that it had no prior written notice of any alleged defectregarding Hynes Road, as required by the Town's Code as a condition precedent to anaction against the Town. The Town also argued that while the "amended complaintappears to create a generalized allegation . . . of improper highway design,"the notice of claim "gives no [*2]indication that anydefect in the roadway was affirmatively created by the Town." In opposition, theplaintiffs argued, inter alia, that the Town had negligently designed and/or constructedthe subject roadway. The plaintiffs also cross-moved for various relief, includingsummary judgment on the issue of liability against the Town, both on the merits and onthe ground of spoilation of evidence, to strike the Town's answer on the ground ofspoliation of evidence, or, in the alternative, to direct that an adverse inference charge begiven against the Town at trial on the ground of spoliation of evidence. The SupremeCourt denied the Town's motion, stating, in part, that "[t]he written notice law cannotserve as a basis to avoid liability for the improper construction of a municipal roadway";the court also denied the plaintiffs' cross motion. The Town appeals, and the plaintiffscross-appeal.
A notice of claim which, inter alia, sufficiently identifies the claimant, states thenature of the claim and describes the time when, the place where, and the manner inwhich the claim arose, is a condition precedent to asserting a tort claim against amunicipality (see General Municipal Law § 50-e [1] [a]; Brown v Cityof New York, 95 NY2d 389, 393 [2000]; Rist v Town of Cortlandt, 56 AD3d 451 [2008]; Santoro v Town of Smithtown,40 AD3d 736 [2007]). While a claimant need not state "a precise cause of action inhaec verba in a notice of claim" (DeLeonibus v Scognamillo, 183 AD2d 697,698 [1992]), "a party may not add a new theory of liability which was not included in thenotice of claim" (Semprini vVillage of Southampton, 48 AD3d 543, 544 [2008]; see Ana R. v New York City Hous.Auth., 95 AD3d 981 [2012]; O'Connor v Huntington U.F.S.D, 87 AD3d 571 [2011];Mazzilli v City of New York, 154 AD2d 355, 357 [1989]).
Here, the Town established its prima facie entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against it by submitting proof that the noticeof claim made no allegations that the Town defectively designed or negligentlyconstructed the roadway where the accident occurred (see Kane v Triborough Bridge &Tunnel Auth., 8 AD3d 239 [2004]; Hugelmaier v Town of Sweden, 130AD2d 962 [1987]; see also AnaR. v New York City Hous. Auth., 95 AD3d 981 [2012]; O'Connor v HuntingtonU.F.S.D, 87 AD3d 571 [2011]; Hudson Val. Mar., Inc. v Town of Cortlandt, 79 AD3d 700[2010]). In opposition to this showing, the plaintiffs failed to raise a triable issue of fact(see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In addition, to the extentthat the notice of claim alleged the existence of a dangerous condition that was notcreated by the Town, the Town nevertheless established that it had no prior written noticeof any alleged defect in the roadway, as is required by the Town Code (see Codeof Town of Beekman § 109-1). In opposition, the plaintiffs failed to raise a triableissue of fact (see Regan v Townof N. Hempstead, 66 AD3d 863 [2009]). Accordingly, the Supreme Courtshould have granted the Town's motion for summary judgment dismissing the complaintinsofar as asserted against it.
The plaintiffs' remaining contentions either are without merit or have been renderedacademic. Skelos, J.P., Leventhal, Hall and Sgroi, JJ., concur.