Hunt v. New York City Housing Authority

280 A.D.2d 391, 721 N.Y.S.2d 41, 2001 N.Y. App. Div. LEXIS 1716

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2001
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered May 15, 2000, which, in an action for personal injuries sustained when plaintiff slipped and fell on stairs leading to the entrance of a building owned and operated by defendant Housing Authority, denied plaintiff’s motion to vacate plaintiff’s default in opposing a prior motion by defendant to strike so much of plaintiffs bill of particulars as alleges inadequate lighting as a contributing cause of the accident, or, in the alternative, to deem plaintiffs notice of claim amended so as to include inadequate lighting as a contributing cause of the accident, unanimously affirmed, without costs.

Plaintiffs attorney’s representation that his office “misdiaried” the motion, and that such law office failure was the reason for plaintiffs failure to oppose defendant’s motion to strike the new allegations in the bill of particulars regarding inadequate lighting, perhaps explains the failure to appear at oral argument, but does not explain the failure to submit opposition papers to the motion, which was twice adjourned at plaintiffs request (see, John v City of New York, 260 AD2d 187). In any event, even if there were no default, we would reject plaintiffs effort to claim that his slip and fall was caused not only by snow and ice on the stairs, as alleged in his notice of claim, but also by inadequate lighting. Plaintiffs General Municipal Law § 50-h hearing testimony, taken five months after the accident, was too vague to give defendant notice of the essential facts constituting the current claim based on inadequate lighting. Indeed, nowhere at that hearing did plaintiff claim that inadequate lighting was a causative factor of the incident. Concur— Rosenberger, J. P., Nardelli, Andrias, Ellerin and Saxe, JJ.