Shantay P. v. City of New York

Appellate Division of the Supreme Court of New York

Shantay P. v. City of New York

2017 NY Slip Op 917, 147 A.D.3d 438, 46 N.Y.S.3d 412

Appellate Division of the Supreme Court of the State of New York·Decided February 7, 2017·No. 2659 21187/11·Published

Opinion

*439 Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about July 8, 2015, which granted defendant City of New York’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The infant plaintiff, a high school student, was injured when her hand became caught in a metal cage that was covering lights in a school gymnasium. Dismissal of the complaint was warranted in this action, because defendant is not a proper party (see Gonzalez v City of New York, 94 AD3d 559 [1st Dept 2012], lv denied 20 NY3d 859 [2013]; Corzino v City of New York, 56 AD3d 370 [1st Dept 2008]). Plaintiffs’ argument that the City created the alleged dangerous condition was not pleaded in the complaint, and plaintiffs never moved to amend the complaint (compare Fogan-Chew v Poughkeepsie Dept. of Pub. Works, 135 AD3d 702 [2d Dept 2016]).

Concur — Acosta, J.P., Mazzarelli, Andrias, Feinman and Webber, JJ.

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*439 Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about July 8, 2015, which granted defendant City of New York’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The infant plaintiff, a high school student, was injured when her hand became caught in a metal cage that was covering lights in a school gymnasium. Dismissal of the complaint was warranted in this action, because defendant is not a proper party (see Gonzalez v City of New York, 94 AD3d 559 [1st Dept 2012], lv denied 20 NY3d 859 [2013]; Corzino v City of New York, 56 AD3d 370 [1st Dept 2008]). Plaintiffs’ argument that the City created the alleged dangerous condition was not pleaded in the complaint, and plaintiffs never moved to amend the complaint (compare Fogan-Chew v Poughkeepsie Dept. of Pub. Works, 135 AD3d 702 [2d Dept 2016]).

Concur — Acosta, J.P., Mazzarelli, Andrias, Feinman and Webber, JJ.

Shantay P. v. City of New York, 2017 NY Slip Op 917, 147 A.D.3d 438, 46 N.Y.S.3d 412 (N.Y. Ct. App. 2017).

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Opinion

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