Opinion
2020–05537 Index No. 7432/12
12-27-2023
Mark JACOBOWITZ, appellant, v. CITY OF NEW YORK, respondent.
James Cammarata, Oyster Bay, NY (Patricia Rooney of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Ingrid R. Gustafson, Eric Lee, and Janet L. Zaleon of counsel), for respondent.
James Cammarata, Oyster Bay, NY (Patricia Rooney of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Ingrid R. Gustafson, Eric Lee, and Janet L. Zaleon of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LOURDES M. VENTURA, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated February 27, 2020. The order granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On April 27, 2011, the plaintiff was operating a motorcycle on a public street in the City of New York, when the motorcycle's front wheel entered a pothole, and the plaintiff lost control and fell, sustaining injuries. In 2011, the plaintiff filed a notice of claim, alleging that the plaintiff "struck a pot hole" and was "ejected from the vehicle." The notice of claim did not identify a theory of liability. The complaint alleged that the plaintiff's injuries were caused by the City's negligence in allowing the pothole to develop and in failing to repair it. In his bill of particulars, the plaintiff, alleged, in addition to the claim that the City failed to repair the pothole, for the first time, that the City was negligent in "creating ... a trap like condition" (emphasis added).
In August 2019, after the note of issue was filed, the City moved, inter alia, for summary judgment dismissing the complaint on the ground that it had not received prior written notice of the defective condition of the street. In opposition, the plaintiff argued that the City had created a dangerous condition that satisfied the affirmative negligence exception to the prior written notice requirement of the Pothole Law (see Administrative Code of City of New York § 7–201[c][2]). In an order dated February 27, 2020, the Supreme Court determined that the City did not have prior written notice of the pothole and that the plaintiff failed to raise a triable issue of fact as to whether the affirmative negligence exception applied. Accordingly, the court granted that branch of the City's motion which was for summary judgment dismissing the complaint. The plaintiff appeals.
We affirm the grant of summary judgment, but on different grounds (see Bank of N.Y. Mellon v. Greene, 210 A.D.3d 1042, 1043, 178 N.Y.S.3d 778 ; Louis–Juste v. Fisher Park Lane Owner, LLC, 205 A.D.3d 703, 704, 165 N.Y.S.3d 738 ). "Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies" ( Congero v. City of Glen Cove, 193 A.D.3d 679, 681, 141 N.Y.S.3d 909 ; see Smith v. City of New York, 210 A.D.3d 53, 61–62, 175 N.Y.S.3d 529 [internal quotation marks omitted]). "Where the City establishes that it lacked prior written notice under the Pothole Law, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule" ( Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; see Morales v. Village of Ossining, 218 A.D.3d 460, 460–461, 193 N.Y.S.3d 131 ), including "where the locality created the defect or hazard through an affirmative act of negligence" ( Smith v. City of New York, 210 A.D.3d at 62, 175 N.Y.S.3d 529 [internal quotation marks omitted]; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ). Here, the City established, prima facie, that it lacked prior written notice of the dangerous condition through the deposition of a City Department of Transportation record searcher (see Nieves v. City of New York, 216 A.D.3d 800, 801, 189 N.Y.S.3d 568 ; Schaum v. City of New York, 216 A.D.3d 691, 692, 187 N.Y.S.3d 108 ).
In opposition, the plaintiff failed to raise a triable issue of fact. "A notice of claim must set forth, inter alia, the nature of the claim, and the time, place, and manner in which the claim arose" ( Congero v. City of Glen Cove, 193 A.D.3d at 680, 141 N.Y.S.3d 909 [internal quotation marks omitted]; Lipani v. Hiawatha Elementary Sch., 153 A.D.3d 1247, 1248, 61 N.Y.S.3d 582 ). Evidence extrinsic to the notice of claim "cannot be used to substantively change the nature of the claim or the theory of liability, since causes of action or legal theories may not be raised in the complaint [or in a bill of particulars] that were not directly or indirectly mentioned in the notice of claim and that change the nature of the claim or assert a new one" ( Mosley v. City of New York, 217 A.D.3d 857, 859, 191 N.Y.S.3d 699 [internal quotation marks omitted]; see Levy v. Incorporated Vil. of E. Hampton, 193 A.D.3d 714, 714–715, 141 N.Y.S.3d 889 ). Contrary to the plaintiff's contention, his claim in his bill of particulars that the City created the dangerous condition asserted a new theory of affirmative negligence that was not raised in his notice of claim (see Mosley v. City of New York, 217 A.D.3d at 860, 191 N.Y.S.3d 699 ; Congero v. City of Glen Cove, 193 A.D.3d at 681–682, 141 N.Y.S.3d 909 ; Burton v. Village of Greenport, 162 A.D.3d 968, 969–970, 80 N.Y.S.3d 383 ). Accordingly, this theory cannot be considered in evaluating the City's motion for summary judgment.
In light of the foregoing, we need not consider the plaintiff's remaining contention.
Accordingly, the Supreme Court properly granted that branch of the City's motion which was for summary judgment dismissing the complaint.
DILLON, J.P., CHAMBERS, FORD and VENTURA, JJ., concur.