Wednesday, January 13, 2016

A deficient notice of claim.

Practice point:  In this action arising from plaintiff's slip and fall on liquid that was allegedly present on the step of a staircase owned and maintained by defendant, the Appellate Division affirmed dismissal of the allegations made in the supplemental bill of particulars regarding defendant's failure to provide a skid or slip-resistance surface on the stair treads, and for improperly training its employees. The notice of claim states that the accident was caused "as a result of a liquid substance" on the step and that defendant was reckless and/or negligent in its ownership, operation, design, creation, management, maintenance, contracting, subcontracting, supervision, authorization, use and control. It cannot be fairly inferred from the notice that plaintiff would later assert that the step itself was in a defective condition or that the building's porter was improperly trained.

Student note:  Plaintiff may not rely on his testimony at the General Municipal Law § 50-H hearing to rectify the deficient notice of claim, as such testimony is permitted only to clarify the location of an accident or the nature of injuries.  It may not be used to amend the theory of liability set forth in the notice of claim where, as here, an amendment would change the nature of the claim.

Case:  Lewis v. New York City Hous. Auth., NY Slip Op 00400 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Default judgment denied.