Wilson v. New York City Transit Authority

66 A.D.2d 602, 888 N.Y.S.2d 476

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 2009
• Status: Published

Opinion

Order, Supreme Court, New York County (Donna M. Mills, J.), entered April 9, 2008, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In opposition to defendant’s prima facie showing of entitlement to judgment as a matter of law, plaintiff offered nothing more than belated speculation that her trip and fall was caused by overcrowded conditions on the stairway to the subway. Plaintiff, who repeatedly denied knowing the reason for her fall, failed to present any evidence that defendant’s negligence had caused her injuries (see Daniarov v New York City Tr. Auth., 62 AD3d 480 [2009]; Rudner v New York Presbyt. Hosp., 42 AD3d 357 [2007]). The assertion that overcrowded conditions formed the basis of liability was not articulated in her notice of claim, thereby precluding her from raising this new theory in opposition to the motion for summary judgment (see Sutin v Manhattan & Bronx Surface Tr. Operating Auth., 54 AD3d 616 [2008]). Concur—Sweeny, J.P., Buckley, DeGrasse, Freedman and AbdusSalaam, JJ.