Trip/Fall Claims Dismissed Where Litigation Theory Deviated From That Asserted in Notice of Claim

A recent First Department decision, Cambio v. City of New York (decided June 19, 2014), underscores the notice function of a “notice of claim” and held that the plaintiff’s subsequent deviation from allegations in his notice of claim mandated dismissal.

The facts:

Plaintiff, who is legally blind, alleged in his notice of claim that he fell at a street corner because of defects in the roadway that the City negligently failed to prevent from becoming a “traplike condition.” In his complaint, however, plaintiff alleged that the City negligently failed to maintain the sidewalk, curb and roadway, negligently caused and permitted damage thereto, rendering the location dangerous, and failed to properly inspect and repair the location. At the General Municipal Law § 50-h hearing, plaintiff testified that the curb was higher than he expected, and in his bill of particulars he alleged that the accident occurred because, when he “stepped off the curb, he was caused to fall into the roadway due to the improper unexpected sudden and excessive drop of the curb to the roadway.”

The court agreed with the City’s argument “that plaintiff raised a new theory of liability in the complaint and bill of particulars by alleging that the City caused and created the defect, since the notice of claim alleged negligent maintenance and did not alert the City that plaintiff would allege a theory of affirmative negligence, or negligent design.” (Emphasis added.)

Though this alone required dismissal, the court proceeded to note that plaintiff failed to raise an issue of fact as to the City’s negligence or malpractice in the curb’s design. Though plaintiff’s expert relied on the Department of Transportation’s Standard Details of Construction (see 34 RCNY 2-09[a][2]) in asserting that curbs must be seven inches over the adjacent roadway, the court noted that this document did not impose a “particularized mandate or a clear legal duty”.

 

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