Barksdale v. New York City Transit Authority

294 A.D.2d 210, 741 N.Y.S.2d 697, 2002 N.Y. App. Div. LEXIS 5108

Opinion

—Order, Supreme Court, Bronx County (Louis Benza, J.), entered February 8, 2001, which granted defendant’s motion in limine to preclude plaintiff from offering evidence respecting defective design, unanimously affirmed, without costs.

Plaintiffs notice of claim set forth a theory of liability based on the lack of and/or improperly maintained safety chains between the subway cars where the decedent allegedly fell. After expiration of the period within which amendment of her notice of claim would have been permissible, i.e. the statute of limitations, plaintiff served a bill of particulars attributing the decedent’s harm to design defects in the gates “or other devices” between subway cars. The court thus properly precluded plaintiff from submitting proof at trial relating to this new theory of liability (see, White v New York City Hous. Auth., 288 AD2d 150; Chipurnoi v Manhattan & Bronx Surface Tr. Operating Auth., 216 AD2d 171). Concur—Buckley, J.P., Sullivan, Lerner and Friedman, JJ.