PEREZ v. Safety City, Defendant. (2021)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered February 3, 2020, which granted defendant City of New York's motion to dismiss the complaint as against it for failure to state a cause of action, and denied plaintiff's cross motion for leave to serve an amended notice of claim, unanimously affirmed, without costs.

In this action, plaintiff alleges that he was skateboarding on West 155 th Street near the Riverside Drive viaduct when his skateboard struck a pothole in the roadway, causing him to fall and injure his left knee and ankle.  Plaintiff served a timely notice of claim on the City which simply alleged that he “was injured due to a pothole located at 155 th Street between Broadway and Riverside Avenue [sic] in Manhattan”, but asserted no theory of liability.  The motion court providently exercised its discretion in denying plaintiff's subsequent cross motion to amend the notice of claim pursuant to General Municipal Law § 50–e(6) on the ground that the proposed amendment impermissibly asserted new theories of liability (see Santana v. New York City Tr. Auth., 88 A.D.3d 539, 930 N.Y.S.2d 587 [1st Dept. 2011]).  Nor can plaintiff rely on his General Municipal Law § 50–h hearing testimony to rectify the deficiencies in his notice, where, as here, “[the] amendment would change the nature of the claim” (see Scott v. City of New York, 40 A.D.3d 408, 410, 836 N.Y.S.2d 140 [1st Dept. 2007]).  The timely service of the summons and complaint upon Corporation Counsel does not avail plaintiff, because the pleadings are distinct from, and not a substitute for, a valid notice of claim (see Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 61–62, 484 N.Y.S.2d 533, 473 N.E.2d 761 [1984]).

The court correctly dismissed the complaint as against the City, because plaintiff failed to plead the applicability of the affirmative negligence exception to the prior written notice requirement (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008]).  Contrary to plaintiff's contention, the complaint alleges merely that the City negligently maintained the accident location;  it does not allege that the City's employees committed an affirmative act of negligence that created the subject pothole.  “[P]laintiff never asserted such a theory in [his] notice of claim or complaint and [he] is precluded from doing so in opposition to defendant's motion after the statute of limitations has expired” (Kales v. City of New York, 169 A.D.3d 585, 585, 95 N.Y.S.3d 58 [1st Dept. 2019]).