The Appellate Division affirmed the Order which granted defendants' motion for summary judgment dismissing the complaint. Plaintiff concedes that defendants are not liable for her injuries on the ground that they were negligent in failing properly to clear the sidewalk of snow and ice, because at the time she slipped and fell, there was a storm in progress, and therefore they had no legal duty to begin snow and ice removal efforts. Instead, in opposition to defendants' motion, plaintiff argues for the first time that defendants are liable because their employee negligently directed her to walk in an unsafe area. However, nowhere in her notice of claim, the complaint, or the verified bill of particulars does plaintiff allege that the employee directed her to go around his snow blower, causing her to step into an accumulation of snow that obscured the curb, from which she fell into the roadway. Contrary to plaintiff's contention, there is no allegation in her notice of claim, pleadings, or testimony that afforded defendants notice of this new theory of liability. Even if the pleadings and testimony had raised this new theory, plaintiff could not use them to rectify deficiencies in the notice of claim. Moreover, as the new theory would not have been authorized by General Municipal Law § 50-e(6), even if plaintiff had sought to amend the notice of claim, it is irrelevant whether defendants would be prejudiced by it.
Wilson v. City of New York, NY Slip Op 03931 (1st Dep't June 17, 2021)
