| Steins v Incorporated Vil. of Garden City |
| 2015 NY Slip Op 03149 [127 AD3d 957] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Joan Steins, Appellant, v Incorporated Villageof Garden City, Respondent. |
Henry Stanziale, Mineola, N.Y. (Thomas Stanziale of counsel), for appellant.
Cullen & Dykman LLP, Garden City, N.Y. (Margaret Mazlin of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Bruno, J.), entered March 26, 2013, whichgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On February 11, 2011, the plaintiff allegedly slipped and fell on a patch of ice in aparking lot, adjacent to the Long Island Rail Road, that was owned and operated by thedefendant, Incorporated Village of Garden City. In her notice of claim, the plaintiffstated that the nature of the claim was a "[s]lip and fall on ice." The complaint allegedthat the defendant created the ice patch upon which the plaintiff fell.
The defendant moved for summary judgment dismissing the complaint, arguing thatthere was no evidence that it created or exacerbated, through an affirmative act ofnegligence, the alleged icy condition that caused the plaintiff to fall. In the alternative,the defendant argued that the notice of claim was defective because it did not state atheory of liability. The Supreme Court expressly rejected the defendant's contention thatthe notice of claim was defective, but granted the defendant's motion, concluding that theplaintiff failed to raise a triable issue of fact in opposition to the defendant's showing thatit did not create or exacerbate an allegedly dangerous icy condition through affirmativeacts of negligence. We affirm, albeit on the ground that the notice of claim was deficient,inasmuch as it did not provide the defendant with notice of the legal theory of theclaim.
Contrary to the Supreme Court's conclusion, the defendant did not establish, primafacie, that it did not create or exacerbate, through an affirmative act of negligence, thealleged icy condition that caused the plaintiff to fall. "[T]he prima facie showing which adefendant must make on a motion for summary judgment is governed by the allegationsof liability made by the plaintiff in the pleadings" (Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2010];see Braver v Village ofCedarhurst, 94 AD3d 933 [2012]). Here, since the complaint alleged that thedefendant created the ice patch upon which the plaintiff fell, the defendant was obligatedto show that it did not create the ice patch. The defendant failed to demonstrate that itsalleged failure to spread a salt and sand mixture on the ground after it plowed the parkinglot in the early morning hours preceding the plaintiff's accident did not affirmativelycause the icy condition that resulted in the plaintiff's accident.
However, we find persuasive the defendant's alternative ground for affirmance(see [*2]Parochial Bus Sys. v Board of Educ. of Cityof N.Y., 60 NY2d 539, 545 [1983]).
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]; Brownv City of 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]), the notice of claim must at least adequately apprise the defendant that theclaimant would seek to impose liability under a cognizable theory of recovery (see Browne v City of NewYork, 67 AD3d 620, 620 [2009]). Moreover "a party may not add a new theoryof liability which was not included in the notice of claim" (Semprini v Village ofSouthampton, 48 AD3d 543, 544 [2008]; see Ana R. v New York City Hous. Auth., 95 AD3d 981[2012]; O'Connor v HuntingtonU.F.S.D., 87 AD3d 571 [2011]; Mazzilli v City of New York, 154AD2d 355, 357 [1989]).
Here, the defendant established its prima facie entitlement to judgment as a matter oflaw by submitting proof that the notice of claim made no allegations that the ice patch onwhich the plaintiff slipped and fell was created by its snow removal operation, or existedby virtue of its negligence (seeKane v Triborough Bridge & Tunnel Auth., 8 AD3d 239 [2004];Hugelmaier v Town of Sweden, 130 AD2d 962 [1987]; see also Ana R. v New York CityHous. Auth., 95 AD3d 981 [2012]; O'Connor v Huntington U.F.S.D., 87 AD3d 571 [2011]; Hudson Val. Mar., Inc. v Town ofCortlandt, 79 AD3d 700 [2010]). In opposition, the plaintiff failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint. Leventhal, J.P., Hall, Cohen and Maltese,JJ., concur.