Opinion
2001-02468
Argued June 13, 2002.
July 22, 2002.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Solomon, J.), entered February 13, 2001, which, upon granting the motion of the defendant New York City Board of Education pursuant to CPLR 4401 for judgment in its favor as a matter of law dismissing the complaint insofar as asserted against it, and upon a jury verdict finding the plaintiff Felice Brenner to be 70% at fault in the happening of the accident and the defendant Edward Trerise to be 30% at fault in the happening of the accident, is in favor of the plaintiff Felice Brenner and against the defendant Edward Trerise in the principal sum of only $2,115.
Fischbein Badillo Wagner Harding, New York, N.Y. (Bruce N. Lederman of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and George Gutwirth of counsel), for respondent New York City Board of Education.
Ian Anderson, New York, N.Y., for respondent Edward Trerise.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, HOWARD MILLER, JJ.
ORDERED that the judgment is affirmed, with one bill of costs.
The plaintiffs failed to offer any proof that the door which allegedly injured the plaintiff Felice Brenner was defective or that the defendant New York City Board of Education (hereinafter the Board of Education) had notice of any alleged defect (see Aquila v. Nathan's Famous, 284 A.D.2d 287; Pacht v. International Bus. Machs., 228 A.D.2d 422). Accordingly, the Supreme Court properly dismissed the cause of action asserted against the Board of Education, to recover damages for negligent maintenance of the door (see Fasolino v. Charming Stores, 77 N.Y.2d 847, 848; DiGiovanni v. Rausch, 226 A.D.2d 420).
The Supreme Court properly denied the plaintiffs' motion for leave to amend their complaint to include a negligence claim against the Board of Education based on the theory of respondeat superior (see Castagne v. Barouh, 249 A.D.2d 257; Felix v. Lettre, 204 A.D.2d 679, 680; Chainani v. Board of Educ. of City of N.Y., 201 A.D.2d 693, 696, affd 87 N.Y.2d 370; Mazzilli v. City of New York, 154 A.D.2d 355; DiMauro v. Metropolitan Suburban Bus Auth., 105 A.D.2d 236).
The plaintiffs' remaining contentions are without merit.
O'BRIEN, J.P., FRIEDMANN, McGINITY and H. MILLER, JJ., concur.