Shantay P. v. City of New York

Shantay P. v City of New York (2017 NY Slip Op 00917)

Shantay P. v City of New York

2017 NY Slip Op 00917

Decided on February 7, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 7, 2017
Acosta, J.P., Mazzarelli, Andrias, Feinman, Webber, JJ.

2659 21187/11

[*1]Shantay P., Infant, by her Father, and Natural Guardian, et al., Plaintiffs-Appellants,

v

The City of New York, Defendant-Respondent.

Litman & Litman, P.C., Woodbury (Jeffrey E. Litman of counsel), for appellants.

Lester Schwab Katz & Dwyer, LLP, New York (Stewart G. Milch of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about July 8, 2015, which granted defendant City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The infant plaintiff, a high school student, was injured when her hand became caught in a metal cage that was covering lights in a school gymnasium. Dismissal of the complaint was warranted in this action, because defendant is not a proper party (see Gonzalez v City of New York, 94 AD3d 559 [1st Dept 2012], lv denied 20 NY3d 859 [2013]; Corzino v City of New York, 56 AD3d 370 [1st Dept 2008]). Plaintiffs' argument that the City created the alleged dangerous condition was not pleaded in the complaint, and plaintiffs never moved to amend the complaint (compare

Fogan-Chew v Poughkeepsie Dept. of Pub. Works, 135 AD3d 702 [2d Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 7, 2017

CLERK