Court Precludes Theory Not Asserted in Notice of Claim

In personal injury litigation against the City of New York, the name of the game is the Notice of Claim.

In Lewis v. New York City Hous. Auth., 2016 NY Slip Op 00040 (App. Div. 1st Dept. Jan. 7, 2016), the court affirmed the lower court’s order granting defendant’s motion to strike allegations from plaintiff’s supplemental bill of particulars, since it constituted “new theories of liability not set forth in the notice of claim.”

The court explained:

In this action for negligence arising from plaintiff’s slip and fall on liquid that was allegedly present on the third step of a staircase owned and maintained by defendant, the Supreme Court properly dismissed the allegations made in the supplemental bill of particulars regarding defendant’s failure to provide a skid or slip-resistance surface on the staircases’s stair treads, with listed regulatory violations, and that defendant’s employees were improperly trained. Indeed, the notice of claim states that the accident was caused “as a result of a liquid substance” being on the third step of the subject staircase and that NYCHA was reckless and/or negligent in its ownership, operation, design, creation, management, maintenance, contracting, subcontracting, supervision, authorization, use and control. It cannot be fairly inferred from the aforementioned language that plaintiff would later assert that the third step itself was in a defective condition or that the building’s porter was improperly trained.

It also held that plaintiff “may not rely on his testimony at his General Municipal Law ยง 50-H hearing to rectify any deficiencies in the notice of claim, because he never testified that there was an issue with the step itself and traditionally such testimony has only been permitted to clarify the location of an accident or the nature of injuries, [it] may not be used to amend the theory of liability set forth in the notice of claim where, as here, amendment would change the nature of the claim.”

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