WILSON v. NEW YORK CITY TRANSIT AUTHORITY

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Supreme Court, Appellate Division, First Department, New York.

Ruby WILSON, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent.

Decided: October 29, 2009

SWEENY, J.P., BUCKLEY, DeGRASSE, FREEDMAN, ABDUS-SALAAM, JJ. Andrew F. Plasse, New York, for appellant. Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered April 9, 2008, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 In opposition to defendant's prima facie showing of entitlement to judgment as a matter of law, plaintiff offered nothing more than belated speculation that her trip and fall was caused by overcrowded conditions on the stairway to the subway.   Plaintiff, who repeatedly denied knowing the reason for her fall, failed to present any evidence that defendant's negligence had caused her injuries (see Daniarov v. New York City Tr. Auth., 62 A.D.3d 480, 879 N.Y.S.2d 404 [2009];  Rudner v. New York Presbyt. Hosp., 42 A.D.3d 357, 840 N.Y.S.2d 319 [2007] ).   The assertion that overcrowded conditions formed the basis of liability was not articulated in her notice of claim, thereby precluding her from raising this new theory in opposition to the motion for summary judgment (see Sutin v. Manhattan & Bronx Surface Tr. Operating Auth., 54 A.D.3d 616, 864 N.Y.S.2d 411 [2008] ).