Alvarez v. Lindsay Park Housing Corp.

175 A.D.2d 225

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1991
• Status: Published

Opinion

— In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated December 6, 1989, which granted the motion of the defendants Lindsay Park Housing Corp. and A.D.A.M., Inc., for renewal and reargument and, upon renewal and reargument, granted summary judgment in their favor dismissing the complaint insofar as it is asserted against them.

Ordered that the order is affirmed, with costs.

On appeal, the plaintiffs urge that the court erred in granting summary judgment to the defendants Lindsay Park Housing Corp. and A.D.A.M., Inc. (hereafter the Lindsay Park defendants). In their view, their opposition papers demonstrated, inter alia, the existence of triable issues of material fact relating to an alleged breach by the Lindsay Park defendants of an assumed duty to ensure that none of the plaintiff mother’s children would leave the pool area located on the Lindsay Park defendants’ premises without being in the company of their mother or other siblings.

In their complaint and bill of particulars, however, the plaintiffs failed to allude to the alleged assumption of this special duty. Accordingly, this new theory, presented for the first time in opposition to the motion for summary judgment, will not serve to bar the granting of summary judgment where otherwise appropriate (see, 4 Weinstein-Korn-Miller, NY Civ Prac |f 3212.10; see also, Annutto v Village of Herkimer, 56 Misc 2d 186, 189, mod on other grounds 31 AD2d 733).

In view of the clear evidence that the injuries suffered by the then-infant plaintiff were not caused by any breach of the general duty owed by an owner or tenant to exercise reasonable care to maintain property in a safe condition (see generally, Basso v Miller, 40 NY2d 233, 241; see also, Iannelli v Powers, 114 AD2d 157, 161), we find that the Supreme Court properly granted summary judgment to the Lindsay Park defendants.

We have reviewed the remaining contentions of the parties and find that none warrant a contrary result herein. Bracken, J. P., Lawrence, Miller and O’Brien, JJ., concur.