GUZMAN v. CITY OF NEW YORK (2021)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered May 28, 2019, which granted the motion of defendant City of New York for summary judgment dismissing the complaint and all cross claims as against it, and order, same court and Justice, entered on or about September 25, 2019, which, inter alia, granted the motion of defendant Consolidated Edison, Inc. (Con Ed) to dismiss the complaint and all cross claims as against it, unanimously affirmed, without costs.

Plaintiff was injured while riding on a bus, when a metal sewer plate exploded, penetrated the bus, and fell on her foot.  Her notice of claim alleged that the City was negligent in the operation and maintenance of the bus.  This claim was repeated in her bill of particulars and multiple complaints she filed over the course of the litigation.  However, plaintiff now acknowledges that the City did not own, operate, or control the bus.  She contends that the notice of claim was sufficient to put the City on notice of a claim for negligent maintenance of the roadway based on her recitation of the facts of the accident.

The court properly granted the City's motion since the notice of claim was insufficient to put the City on notice to investigate defects in the roadway, and it was too late to amend the notice of claim four years after the accident (see Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331 [1982] ).  An amendment to a notice of claim that creates a new theory of liability does not fall within the purview of General Municipal Law § 50–e(6), which permits a party to correct a notice of claim in certain circumstances (see Matter of Corwin v. City of New York, 141 A.D.3d 484, 488, 36 N.Y.S.3d 118 [1st Dept. 2016] ).

The complaint was also properly dismissed with respect to Con Ed because it did not allege any tortious conduct on Con Ed's part, despite being amended twice by plaintiff during the course of the litigation.  Failing to provide a defendant with notice of the material elements of the cause of action creates prejudice (see Travelers Ins. Co. v. Ferco, Inc., 122 A.D.2d 718, 719, 511 N.Y.S.2d 594 [1st Dept. 1986] ).  Here, the complaint informed Con Ed of the events giving rise to plaintiff's claim but did not cite any conduct by Con Ed linking

it to her injuries.  The evidence plaintiff adduced during discovery concerning work in the roadway by Con Ed around the time of the accident and her expert's affidavit were insufficient to remedy plaintiff's defective pleading and raise an issue of fact as to Con Ed's liability.