Hyperlawhypertext legal database Shantay P. v. City of New York 147 A.D.3d 438

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Shantay P. v. City of New York

147 A.D.3d 438 Court N.Y. App. Div. Decision date 2017-02-07 English

Judges Concur — Acosta, J.P., Mazzarelli, Andrias, Feinman and Webber, JJ.

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p. 438
Shantay P., an Infant, by her Father and Natural Guardian, et al., Appellants, v City of New York, Respondent.
[46 NYS3d 412]
p. 439
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]).

Concur — Acosta, J.P., Mazzarelli, Andrias, Feinman and Webber, JJ.

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