In B* v. City of New York, the Appellate Division, Second Department, affirmed the dismissal of a personal injury claim against the New York City Transit Authority (NYCTA), Metropolitan Transportation Authority (MTA), and MTA Bus Company.
The plaintiff, NB, alleged she was injured due to a defective sidewalk at a bus stop. Her notice of claim and complaint asserted negligence in the ownership, maintenance, and control of the sidewalk. However, when the Transit defendants moved for summary judgment—arguing they had no duty to maintain sidewalks, which is the City’s responsibility—the plaintiff attempted to pivot. She argued, for the first time, that the Transit defendants breached their duty as common carriers by failing to provide a safe place to disembark.
The Kings County Supreme Court rejected this shift and found in the defendants' favor. It held that the new theory of liability was not only absent from the original notice of claim, but also materially altered the nature of the claim. Under New York law, a plaintiff cannot introduce a new theory of liability at the summary judgment stage if it was not preserved in the notice of claim or pleadings. Since the Transit defendants demonstrated they had no legal duty to maintain the sidewalk, and the plaintiff’s new argument was procedurally barred, the AD2 agreed that summary judgment had been properly granted.
This case reinforces that a notice of claim is not just a formality—it’s the blueprint. Deviate from it, and your case may collapse before it ever reaches trial.
Think she's got a claim against her attorneys?
# # #
DECISION