Tiburcio v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Tiburcio v. New York City Transit Authority

270 A.D.2d 110, 704 N.Y.S.2d 473, 2000 N.Y. App. Div. LEXIS 2847

Appellate Division of the Supreme Court of the State of New York·Decided March 16, 2000·Published·Cited by 3 cases

Opinion

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered January 26, 1999, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs notice of claim was defective since it did not provide defendant with notice of plaintiffs theory of liability, first advanced in plaintiffs deposition more than a year after the accident, that she slipped and fell on subway steps as a result of the absence of a metal tread (see, Chipurnoi v Manhattan & Bronx Surface Tr. Operating Auth., 216 AD2d 171). Since plaintiff was attempting to amend her notice of claim by serving an amended bill of particulars that included this new theory (see, Herron v City of New York, 223 AD2d 676), and the one-year and 90-day limitation period had passed, the IAS Court properly granted defendant’s motion to dismiss the complaint (supra). Concur — Sullivan, P. J., Rosenberger, Mazzarelli, Buckley and Friedman, JJ.

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—Order, Supreme Court, New York County (Robert Lippmann, J.), entered January 26, 1999, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs notice of claim was defective since it did not provide defendant with notice of plaintiffs theory of liability, first advanced in plaintiffs deposition more than a year after the accident, that she slipped and fell on subway steps as a result of the absence of a metal tread (see, Chipurnoi v Manhattan & Bronx Surface Tr. Operating Auth., 216 AD2d 171). Since plaintiff was attempting to amend her notice of claim by serving an amended bill of particulars that included this new theory (see, Herron v City of New York, 223 AD2d 676), and the one-year and 90-day limitation period had passed, the IAS Court properly granted defendant’s motion to dismiss the complaint (supra). Concur — Sullivan, P. J., Rosenberger, Mazzarelli, Buckley and Friedman, JJ.

Tiburcio v. New York City Transit Authority, 270 A.D.2d 110, 704 N.Y.S.2d 473, 2000 N.Y. App. Div. LEXIS 2847 (N.Y. Ct. App. 2000).

Pincite

270 A.D.2d 110 (Tiburcio v. New York City Transit Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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