GUSTAVSSON v. COUNTY OF WESTCHESTER (1999)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), entered August 20, 1998, as granted the defendant's motion for summary judgment dismissing the complaint and denied that branch of her cross motion which was for summary judgment.

ORDERED that the order is affirmed insofar as appealed from, with costs.

We agree with the plaintiff that the defendant failed to establish its entitlement to summary judgment based on its contention that it had not received prior written notice of any alleged defective condition as required by Westchester County Code § 780.01. The defendant did not meet its initial burden of presenting evidence of the absence of such notice.   Therefore, the defendant's motion should not have been granted on this ground, despite the insufficiency of the plaintiff's opposing papers (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Murphy v. County of Westchester, 228 A.D.2d 970, 644 N.Y.S.2d 598).

However, the defendant did establish its entitlement to summary judgment on the ground that it did not have actual or constructive notice of the icy condition which allegedly caused the plaintiff's fall (see, Laster v. Port Auth. of N.Y. & N.J., 251 A.D.2d 204, 676 N.Y.S.2d 539;  Urena v. New York City Tr. Auth., 248 A.D.2d 377, 669 N.Y.S.2d 662).   The plaintiff's contention that the condition was created by negligent shoveling is based on speculation (see, Davis v. City of New York, 255 A.D.2d 356, 679 N.Y.S.2d 423).   There was no evidence which would establish that the defendant had actual notice of the icy patch or that the condition existed for a sufficient length of time for the defendant to discover and remedy it (see, Davis v. City of New York, supra;  Robles v. City of New York, 255 A.D.2d 305, 679 N.Y.S.2d 340).

Finally, the Supreme Court properly denied that branch of the plaintiff's cross motion which was for summary judgment based on new facts and a new theory which had not been pleaded in the notice of claim, complaint, or bill of particulars (see, Moscato v. City of New York, 183 A.D.2d 599, 584 N.Y.S.2d 39;  cf., Deborah Intl. Beauty v. Quality King Distribs., 175 A.D.2d 791, 573 N.Y.S.2d 189), and the plaintiff could not rely on this new theory to defeat the defendant's motion for summary judgment (see, Scanlon v. Stuyvesant Plaza, 195 A.D.2d 854, 600 N.Y.S.2d 810;  Alvarez v. Lindsay Park Hous. Corp., 175 A.D.2d 225, 572 N.Y.S.2d 357).

MEMORANDUM BY THE COURT.