Summary
dismissing defective design claims where notice of claim had alleged that decedent's fall between the subway cars was caused by the lack of or improperly maintained safety chains between subway cars
Summary of this case from Taunus Corp. v. City of New YorkOpinion
1116
May 16, 2002.
Order, Supreme Court, Bronx County (Louis Benza, J.), entered February 8, 2001, which granted defendant's motion in limine to preclude plaintiff from offering evidence respecting defective design, unanimously affirmed, without costs.
Joshua D. Pollack, for plaintiff-appellant.
Lawrence A. Silver, for defendant-respondent.
Before: Buckley, J.P., Sullivan, Lerner, Friedman, JJ.
Plaintiff's notice of claim set forth a theory of liability based on the lack of and/or improperly maintained safety chains between the subway cars where the decedent allegedly fell. After expiration of the period within which amendment of her notice of claim would have been permissible, i.e. the Statute of Limitations, plaintiff served a bill of particulars attributing the decedent's harm to design defects in the gates "or other devices" between subway cars. The court thus properly precluded plaintiff from submitting proof at trial relating to this new theory of liability (see, White v. New York City Hous. Auth., 288 A.D.2d 150;Chipurnoi v. Manhattan Bronx Surface Tr. Operating Auth., 216 A.D.2d 171).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.