result of a motor vehicle accident. It leaves untouched $600K for past P+S, $2.4M (19 yrs) for future lost earnings, $2.1M for future medicals and $2.5M for future loss of pension. Instead, it reduces the jury's award for future P+S (37 yrs) from $23M down to $2.7M. Why? "Un- reasonable." What do juries know?
Instead, we choose Lewis v. NYCHA, 2016 NY Slip Op 00040 (1st Dep't 1/7/16). Defendants moved to strike allegations in the supplemental BP alleging a failure to provide a skid/slip-resistant surface on a staircase in violation of listed statutes and regs. Those allegations, says AD1, were not in the notice of claim and are new theories of liability. Plaintiff's 50-h testimony, even if it could be used to amend a theory of liability (it can't), never spoke about the step itself, just the failure to clean up the liquid that Plaintiff slipped on. The coup de grâce? The boilerplate in the NOC itself; the Swiss Army Knife of pleading, had failed.
Plaintiff alleged in the NOC that Defendant was negligent in the "ownership, operation, design, creation, management, maintenance, contracting, subcontracting, supervision, authorization, use and control" of the step. Sound familiar? If so, according to AD1, shame. You should know that you cannot infer from this language that the step was defective or that Defendant's porter was improperly trained. The supplemental BP, therefore, contained "new theories of liability that cannot be fairly implied from the notice of claim, and precluded plaintiff's expert from testifying with regard to them."
Whoever said this was easy?