Astuto v New York City Tr. Auth.

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Astuto v New York City Tr. Auth. 2017 NY Slip Op 32709(U) December 18, 2017 Supreme Court, New York County Docket Number: 154861/2016 Judge: Lisa A. Sokoloff Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/27/2017 09:48 AM 1] INDEX NO. 154861/2016 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/27/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x EDNA ASTUTO, Plaintiff, DECISION AND ORDER -against- Index No. 154861/2016 NEW YORK CITY TRANSIT AUTHORITY AND JOHN DOE, Defendant. x Recitation, as required by CPLR 2219( a), of the papers considered in the review of this motion: Papers Numbered Order to Show Cause/Notice of Motion and Affidavits/ Affirmations/ Memo of Law annexed Answering Affidavits/Affirmations/ Memo of Law Notice of Cross-Motion and Affidavits/ Affirmations annexed Answering Affidavits/Affirmations to Cross Motion Reply Affidavits/Affirmations ____ ! _2_ _3_ _4_ 5 LISA A. SOKOLOFF, J. Plaintiff Edna Astuto commenced this action against Defendants for her personal injury on the theory that Defendant John Doe, an unknown bus driver, negligently closed the door on her raincoat when she was alighting the bus, which was owned by Defendant New York City Transit Authority, and caused her injury. Defendants move for summary judgement pursuant to CPLR § 3212 to dismiss the claim. Plaintiff opposes and crossmoves for leave to serve an amended Notice of Claim upon New York City Transit Authority. 2 of 5 [*FILED: NEW YORK COUNTY CLERK 12/27/2017 09:48 AM 2] NYSCEF DOC. NO. 30 INDEX NO. 154861/2016 RECEIVED NYSCEF: 12/27/2017 According to Plaintiff Astuto's affidavit, on May 21, 2015, at approximately 7:30 am, when she was exiting the bus near 200 Vesey Street in New York county, the bus door closed on her raincoat and caused her to fall and sustain a dislocated and fractured right elbow and a rotator cuff tear in her right shoulder. The New York City Transit Authority provides video captured by a camera on the bus showing that the door never moved when Plaintiff exited the bus. In fact. it appears Plaintiff fell because her raincoat got caught on a hinge in the opened stationary door of the bus. Defendants move for summary judgement for dismissal on the grounds that Defendants neither breached the duty of care owed Plaintiff, nor caused the injury. A court may grant summary judgment where there is no genuine issue of material fact, and the moving party has made a prima.facie showing of entitlement to a judgment as a matter of law (Alvarez v Prospect Hospital., 68 NY2d 320, 324 [1986]; Taveras v 1149 Webster Realty Corp., 134 AD3d 495 [1st Dept 2015]). Once this initial burden has been met, the burden then shifts to the party opposing the motion to submit evidentiary proof sufficient to create material issues of fact requiring a trial; mere conclusions and unsubstantiated allegations are insufficient (Zuckerman v City of New York, 49 NY2d 557, 562 ([1980]). It is well-settled that to establish a prinwj(.1cie case of negligence, Plaintiff must show that defendant owed a duty of care to plaintiff~ breached the duty, and that the breach was a substantial cause of the events that produced the injury (Derdiarian v Felix Contr. Co., 51 NY2d 308, 315 [ 1980]; ,\!fanisca/co v. Nevi' fork City Transit Authority, 95 A.D.3d 510 [1st Dept 2012]). 2 3 of 5 [*FILED: NEW YORK COUNTY CLERK 12/27/2017 09:48 AM 3] NYSCEF DOC. NO. 30 INDEX NO. 154861/2016 RECEIVED NYSCEF: 12/27/2017 Here, the video clearly shows that Plaintiff did not fall because of the operation of the bus door. Defendants have met their initial burden of establishing entitlement to judgment on the issue of negligence. The burden of proof then shifts to Plaintiff to prove there is a material issue of fact requiring a trial. Plaintiff opposes the motion by arguing that the original notice of claim is broad enough to cover the current theory of liability, therefore there is a triable issue on whether Defendant failed to provide a safe egress. To establish a triable issue of material fact, Plaintiff must do more than merely allege failure to provide safe egress. She must identify the defects or conditions which caused the accident and articulate Defendant's negligence in causing or permitting those conditions to exist. By failing to specify how the egress provided was unsafe and was caused by Defendants. Plaintiff has failed to raise a question of fact necessary to defeat Defendant's motion. Even if Plaintiff had established a triable issue. her action should nonetheless be dismissed because it did not articulate its basis for liability in the Notice of Claim. A plaintiff may not add a new theory ot'liability which was not included in the notice of claim (Monmasterio v New York City House. Auth., 39AD3d 354, 355 [1st Dept 2007]). General Municipal Law ~50-c [61 authorizes only good-faith, non-prejudicial technical changes, but not substantive changes in the theory of liability (Mahase v Manhattan & Bronx Surface Tr. OperatinK Auth., 3J\D3d 410, 411 [1st Dept 2004]; Semprini v Village ofSouthampton, 48 AD3d 543, 545 [2d Dept 2008]). Here, Plaintiff is seeking to add a new theory of liability, a substantive change in the theory ofliability. It is a new, distinct theory because the original one is the bus driver 3 4 of 5 [*FILED: NEW YORK COUNTY CLERK 12/27/2017 09:48 AM 4] NYSCEF DOC. NO. 30 INDEX NO. 154861/2016 RECEIVED NYSCEF: 12/27/2017 operated the bus negligently, while the new one is New York City Transit Authority negligently failed to maintain the hinge in the bus's door in good condition. Furthermore, Plaintiff never sought leave to serve a late notice of claim containing her new theory pursuant to General Municipal Law §50-e[5], and it was not asserted until after the one-year-and-90-day statute limitations period for a late notice expired (Ahnor v. City of New York, 101AD3d581 [1st Dept 2012]). Therefore, cross motion for leave to amend the Notice of Claim is denied. Accordingly, this Court finds that the Defendants' motion for summary judgment to dismiss the complaint is granted, and Plaintiffs cross motion for leave to amend the Notice of Claim is denied. A copy of the decision will be e-filed. Dated: December 18, 2017 New York, New York ENTER: 4 5 of 5

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