Opinion
02-07-2017
SHANTAY P., Infant, by her Father, and Natural Guardian, et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, Defendant–Respondent.
Litman & Litman, P.C., Woodbury (Jeffrey E. Litman of counsel), for appellants. Lester Schwab Katz & Dwyer, LLP, New York (Stewart G. Milch of counsel), for respondent.
Litman & Litman, P.C., Woodbury (Jeffrey E. Litman of counsel), for appellants.
Lester Schwab Katz & Dwyer, LLP, New York (Stewart G. Milch of counsel), for respondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about July 8, 2015, which granted defendant City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The infant plaintiff, a high school student, was injured when her hand became caught in a metal cage that was covering lights in a school gymnasium. Dismissal of the complaint was warranted in this action, because defendant is not a proper party (see Gonzalez v. City of New York, 94 A.D.3d 559, 943 N.Y.S.2d 448 [1st Dept.2012], lv. denied 20 N.Y.3d 859, 2013 WL 537457 [2013] ; Corzino v. City of New York, 56 A.D.3d 370, 868 N.Y.S.2d 37 [1st Dept.2008] ). Plaintiffs' argument that the City created the alleged dangerous condition was not pleaded in the complaint, and plaintiffs never moved to amend the complaint (compare Fogan–Chew v. Poughkeepsie Dept. of Pub. Works, 135 A.D.3d 702, 23 N.Y.S.3d 311 [2d Dept.2016] ).
ACOSTA, J.P., MAZZARELLI, ANDRIAS, FEINMAN, WEBBER, JJ., concur.