Alvarez by Alvarez v. Lindsay Park Housing Corp.
| Decision Date | 22 July 1991 |
| Citation | 175 A.D.2d 225,572 N.Y.S.2d 357 |
| Parties | Jose Juan ALVAREZ, an Infant, by His Mother and Natural Guardian, Delma ALVAREZ, et al., Appellants, v. LINDSAY PARK HOUSING CORP., et al., Respondents, City of New York, Defendant (and a third-party action). |
| Court | New York Supreme Court — Appellate Division |
Fitgerald & Fitzgerald, P.C., Yonkers (Robert C. Agee, of counsel), for appellants.
Rivkin, Radler, Bayh, Hart & Kremer, Uniondale (Evan H. Krinick and Matthew Jay Weiss, of counsel), for respondents Lindsay Park Housing Corp. and A.D.A.M., Inc.
Victor A. Kovner, Corp. Counsel, New York City (Larry A. Sonnenshein and Julian L. Kalkstein, of counsel), for defendant City of N.Y.
Before BRACKEN, J.P., and LAWRENCE, MILLER and O'BRIEN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated December 6, 1989, which granted the motion of the defendants Lindsay Park Housing Corp. and A.D.A.M., Inc., for renewal and reargument and, upon renewal and reargument, granted summary judgment in their favor dismissing the complaint insofar as it is asserted against them.
ORDERED that the order is affirmed, with costs.
On appeal, the plaintiffs urge that the court erred in granting summary judgment to the defendants Lindsay Park Housing Corp. and A.D.A.M., Inc. (hereafter the Lindsay Park defendants). In their view, their opposition papers demonstrated, inter alia, the existence of triable issues of material fact relating to an alleged breach by the Lindsay Park defendants of an assumed duty to ensure that none of the plaintiff mother's children would leave the pool area located on the Lindsay Park defendants' premises without being in the company of their mother or other siblings.
In their complaint and bill of particulars, however, the plaintiffs failed to allude to the alleged assumption of this special duty. Accordingly, this new theory, presented for the first time in opposition to the motion for summary judgment, will not serve to bar the granting of summary judgment where otherwise appropriate (see, 4 Weinstein-Korn-Miller, NY Civ Prac p 3212.10; see also, Annutto v. Village of Herkimer, 56 Misc.2d 186, 189, 288 N.Y.S.2d 79, modified on other grounds, 31 A.D.2d 733, 297 N.Y.S.2d 295).
In view of the clear evidence that the injuries suffered by the then-infant plaintiff were not caused by any breach of the...
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