You are here: / / THE COMPLAINT IN THIS SLIP AND FALL CASE WAS BASED UPON A THEORY NOT DESCRIBED...
,

THE COMPLAINT IN THIS SLIP AND FALL CASE WAS BASED UPON A THEORY NOT DESCRIBED IN THE NOTICE OF CLAIM; THE COMPLAINT WAS PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the complaint in this slip and fall case was properly dismissed. The complaint alleged a theory of liability which was not described in the notice of claim:

“A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality” … . Although “the statute does not require those things to be stated with literal nicety or exactness'” … , a notice of claim must provide ” information sufficient to enable the city to investigate'” … and “must at least adequately apprise the defendant that the claimant would seek to impose liability under a cognizable theory of recovery” … . A plaintiff may not later add a new theory of liability that was not included in the notice of claim … .

Here, the City established its prima facie entitlement to summary judgment dismissing the complaint by submitting evidence that the notice of claim contained no allegation that the City caused or created the icy condition where the accident occurred by negligently maintaining a nearby sewer and failing to repair an alleged “recurring flooding condition from the sewer backup” … . Rubenstein v City of New York, 2019 NY Slip Op 07633, Second Dept 10-23-19

 

You might also like
Imposition of Enhanced Sentence for Defendant’s Tardiness Disallowed
ALTHOUGH THE SECOND ORDER TO SHOW CAUSE SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM WAS FILED TWO DAYS AFTER THE ONE-YEAR-NINETY-DAY LIMITATIONS PERIOD, THE STATUTE OF LIMITATIONS WAS TOLLED FOR THREE DAYS BETWEEN THE FILING AND THE DENIAL OF THE FIRST ORDER TO SHOW CAUSE; THE MEDICAL RECORDS PROVIDED THE MUNICIPALITY WITH NOTICE OF THE ESSENTAL FACTS OF THE CLAIM; THE MOTION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
DEFENSE COUNSEL INEFFECTIVE FOR CONCEDING DEFENDANT SUFFERS FROM A DANGEROUS MENTAL DISORDER; COUNTY COURT SHOULD HAVE HELD THE MANDATORY STATUTORY HEARING; APPEAL IS NOT ACADEMIC BECAUSE OF LASTING CONSEQUENCES OF THE ‘DANGEROUS MENTAL DISORDER’ FINDING (SECOND DEPT).
ALTHOUGH SUPREME COURT PROPERLY DEEMED SERVICE COMPLETE DESPITE LATE FILING OF THE AFFIDAVIT OF SERVICE, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN DENIED, RATHER DEFENDANT SHOULD HAVE BEEN GIVEN EXTRA TIME TO FILE AN ANSWER (SECOND DEPT).
VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Insurer Estopped (pursuant to Insurance Law 3420) from Disclaiming Coverage Re: Previously Incurred Defense Costs in a Personal Injury Action
THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS ROAD-DEFECT SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; THE NINE-MONTH DELAY WAS NOT EXPLAINED; THE CITIY DID NOT HAVE TIMELY NOTICE OF THE POTENTIAL LAWSUIT; AND PETITIONER DID NOT SHOW THE CITY WOULD NOT BE PREJUDICED BY THE DELAY (SECOND DEPT).
Fraud Cause of Action in Legal Malpractice Case Sufficiently Pled

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PROOF OF AN UNCHARGED SEXUAL OFFENSE RELIED UPON FOR AN UPWARD DEPARTURE WAS... DEFENDANTS PRESENTED EVIDENCE THE BANK ACCEPTED PAYMENTS IN LESS THAN THE REQUIRED...