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CAUSE OF ACTION BASED UPON A THEORY NOT ALLEGED IN THE NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined plaintiff’s first cause of action was properly dismissed because it alleged a theory of liability in this slip and fall case that was not alleged in the notice of claim. Apparently the plaintiff fell after getting off defendants’ bus:

[In the notice of claim] the plaintiff alleged … that the accident was caused by “the carelessness, recklessness and negligence of . . . New York City Transit Authority in the ownership, operation, maintenance, repair, construction, renovation, supervision and control of the aforesaid location.” …

… [T]he … defendants established their prima facie entitlement to judgment as a matter of law dismissing the first cause of action … by submitting proof that the amended notice of claim contained no allegation that the bus operator was negligent in failing to provide the plaintiff with a safe place to alight … . Rojas v Hazzard, 2019 NY Slip Op 02573, Second Dept 4-3-19

 

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