Robles v.

• Decision Date: 13 March 2014
• Docket Number: Index No.: 350060/2010
• Citation: 2014 NY Slip Op 31116
• Parties: KARI ROBLES, infant by her Mother and Natural Guardian, MARIA ROBLES and MARIA ROBLES, Individually, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.
• Court: New York Supreme Court

2014 NY Slip Op 31116

KARI ROBLES, infant by her Mother and Natural Guardian,MARIA ROBLES and MARIA ROBLES, Individually, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.

Index No.: 350060/2010

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX

FILED: March 28, 2014

Dated: March 13, 2014

DECISION and ORDER

HON. SHARON A. M. AARONS:

Defendant New York City Housing Authority moves: (1) to dismiss the theory of liability in the complaint that defendant failed to post signs, barricades or warnings as to certain conditions in defendant's building; (2) to dismiss allegations in the complaint that defendant failed to comply with unidentified "statutes, rules, ordinances and regulations;" (3) to dismiss allegations in plaintiff's expert's disclosures that plaintiff violated the New York City Administrative Code (Admin. Code) by failing to use non-skid materials, and use of improper paint; (4) to dismiss allegations in plaintiff's expert's disclosure that defendant was in violation of Admin. Code §§ 27-127 and 27-128; and, (5) excluding the testimony of plaintiff's expert.

This is an action to recover for personal injury sustained by the infant, Kari Robles, arising from a slip and fall on the landing of an interior stairway on Defendant New York City Housing Authority's premises, on July 16, 2009. Plaintiffs allege that the infant suffered a left ankle bimalleolar fracture which required surgery consisting of an open reduction and internal fixation.

In the instant Notice of Motion, Defendant New York City Housing Authority states that it seeks to dismiss what it denotes as "certain theories of liability" which are set forth in "Plaintiffs' Complaint, Bill of Particulars and Notices of Exchange of Expert Information", respectively. Insupport of its motion, Defendant includes the Plaintiffs' Notice of Claim dated Sept. 10, 2009; transcripts of Plaintiffs' GML 50(h) hearings dated Jan. 13, 2010; Plaintiffs' Summons and Complaint dated Jan. 27, 2010; Plaintiffs' Verified Bill of Particulars dated April 8, 2010; the Note of Issue filed on or about April 24, 2012; Plaintiffs' Notices of Exchange of Expert Information, pursuant to CPLR 3101(d), for expert engineer Stanley H. Fein, dated Dec. 20, 2012 and Jan. 31, 2013, respectively.

Ten months after the filing of the Note of Issue, Defendant made the instant motion to dismiss the aforementioned alleged "theories of liability" upon the ground that they purportedly were not originally asserted in the Notice of Claim. In addition, Defendant also seeks to preclude Plaintiffs' engineering expert, Mr. Fein, from testifying at trial.

Pursuant to GML 50-e(1)(a), and 50-i, a tort action against a municipality must be commenced by service of a notice of claim upon the municipality within 90 days from the date on which the claim arose.

In relevant part, GML 50-e(1) "Notice of claim" provides that: "(a) In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, ... the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises."¹

"It is well established that the purpose of the notice of claim is to give a municipal authority the opportunity to investigate." (Goodwin v. New York City Hous. Auth., 42 A.D.3d 63, 68, 834N.Y.S.2d 181, 185 [1st Dept. 2007]).

The Court of Appeals has held that "[t]he test of the sufficiency of a Notice of Claim is merely "whether it includes information sufficient to enable the city to investigate" [citations omitted] ... Thus, in determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim; whether based on the claimant's description municipal authorities can locate the place, fix the time and understand the nature of the accident." (Brown v. City of New York, 95 N.Y.2d 389, 393, 718 N.Y.S.2d 4, 6 [2000]).

In relevant part, GML 50-e(b)(2) provides that the notice of claim shall include: "the nature of the claim; [and] ... the place where and the manner in which the claim arose".

In the case at bar, Plaintiffs' Notice of Claim provided the following detailed description of the manner in which the claim arose, stating that:

"On July 16, 2009, ... in the "A" stairwell on the 6th floor landing thereat ... KARI ROBLES was caused to sustain serious personal injuries when she slipped on a dangerous, unsafe and hazardous condition, to wit: urine that had accumulated over a significant period of time at the subject stairwell. ... [Defendant NYCHA] had actual and constructive notice of the aforesaid condition for at least 3 days prior to the subject incident, but failed to clean, mop, alleviate or otherwise address said condition." [emphasis added] (See Notice of Claim, dated Sept 10, 2009).

Defendant contends that Plaintiffs may not invoke NYC Administrative Code § 27-375, which provides, in relevant part, that: "Treads and landings shall be built of or surfaced with nonskid materials."

What prompted Defendant to make the instant motion was the Plaintiffs' CPLR 3101(d) expert disclosure which set forth Plaintiffs' engineer's opinion that the owner negligently maintained the interior stairway in a dangerous condition, in that:

"the stairway and the landing was of concrete construction ... , and was painted with a grey[sic] paint. It was farther reported that there was an accumulation of urine on the landing which remained on top of the landing for at least three days... Good and accepted engineering safety practice and Section 27-375 (h) of the New York City Building Construction Code requires that steps and landings of steps shall be built of or surfaced with nonskid materials. The subject landing was originally constructed of concrete which has good traction because of the grit in the concrete and has a good absorptivity. Once the surface is painted, the paint fills in the space between the grit and seals the concrete so that it is slippery and can no longer absorb liquids. Good and accepted engineering safety practice for maintenance of a building of this type is to have nonskid strips applied to the landing and the steps to give them proper traction... Urine has a higher specific gravity than water and it would take a longer period of time for it to evaporate. Since the landing floor was non-absorbent, ... the urine would stay there for an extended period of time and it was therefore the same accumulation of urine at the time of the accident that was discovered three days prior." [emphasis added]²

It is Defendant's position that the aforesaid portion of the opinion of engineer, Mr. Fein, contains new theories of liability, which should be precluded. It is well established that the "General Municipal Law § 50-e (6) notice of claim amendment provision³ merely permits correction of good faith, nonprejudicial, technical mistakes, defects or omissions, not substantive changes in the theory of liability (Torres v. New York City Hous. Auth., 261 A.D.2d 273, 274, 690 N.Y.S.2d 257 [1999], lv denied 93 N.Y.2d 816, 719 N.E.2d 924, 697 N.Y.S.2d 563 [1999]". (Mahase v. Manhattan & Bronx Surface Transit Operating Auth., 3 A.D.3d 410. 411,771 N.Y.S.2d 99, 101 [1st Dept. 2004]).

A recent case on point, also, involves an infant plaintiff who fell on a liquid substance on astaircase, where the "notice of claim limited Plaintiffs' theory of liability to negligent maintenance, upkeep and repair of the subject staircase." (Rodriguez v. Board of Educ. of the City of N.Y., 107 A.D.3d 651, 651, 969 N.Y.S.2d 25, 26 [1st Dept. 2013]). Therein, the First Department Appellate Division Court held that: "Plaintiffs' new theory, .... that the infant plaintiff was caused to slip and fall due to various design defects, including, inter alia, treads and risers of insufficient length, ... and stairs not coated with nonskid materials, is precluded." Id.

Accordingly, in the case at bar, this Court grants that part of Defendant's motion that seeks to preclude Plaintiffs from asserting a new theory of liability concerning an alleged design defect pertaining to "nonskid strips" not having been applied to the subject landing and steps pursuant to NYC Administrative Code § 27-375.

However, as to that part of Mr. Fein's point alleging that the gray paint sealed the concrete so that it could not absorb liquids as readily as bare concrete, this is not deemed to be a new theory of liability; rather, it is merely a rationale concerning allegations set forth by the Plaintiffs from the beginning.

In this regard, for instance, in the Notice of Claim, in describing the urine condition that allegedly caused the infant Kari to slip and fall, Plaintiffs claimed that it been there "for at least 3 days prior to the subject incident".

Further, Plaintiff mother, Maria Robles, testified at her GML 50(h) hearing, on January 13, 2010, that she believed that the brown urine that was on the landing on the date of the accident was the same as that which she had observed on the Monday prior to the accident when she had complained to NYCHA, as well as Mr. Philips the managing agent, about it; she stated: "There was a big puddle that took all of the platform and it was brownish looking". Maria Robles furthertestified that the urine, though drier, was still present on the Saturday after the accident and that she recognized the same because her daughter's fingerprint marks remained.⁴ When asked about the color of the stairs, the infant KARI testified that they were "gray".⁵ Also, the Complaint includes allegations that the Defendant permitted the subject landing to be in a slippery condition.⁶

Thus, the allegations made by Plaintiffs, from the beginning, fairly indicate that the brown urine remained on the slippery gray-painted landing for many days; and Plaintiffs are not precluded from expounding on the rationale for that allegation. This...