SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

260 

CA 16-01329 

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ. 

 

AIDEN GONZALEZ, BY HIS PARENT AND NATURAL 

GUARDIAN ELIZABETH SNOW, INDIVIDUALLY, 

PLAINTIFFS-RESPONDENTS, 

V MEMORANDUM AND ORDER

TAMMY POVOSKI, DEFENDANT-RESPONDENT, 

VILLAGE OF ADDISON, 

DEFENDANT-APPELLANT-RESPONDENT, 

AND CORNING NATIONAL GAS CORPORATION, 

DEFENDANT-RESPONDENT-APPELLANT. 

-------------------------------------------- 

CORNING NATURAL GAS CORPORATION, SUED HEREIN 

AS CORNING NATIONAL GAS CORPORATION, 

THIRD-PARTY PLAINTIFF-RESPONDENT-APPELLANT,

V

 

SULLIVAN TRAIL CONSTRUCTION CO., INC., 

THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT. 

COUGHLIN & GERHART, L.L.P., BINGHAMTON, CONGDON, FLAHERTY,

O’CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (CHRISTINE

GASSER OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT. 

VARVARO, COTTER & BENDER, WHITE PLAINS (PATRICIA A. MOONEY OF

COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT AND THIRD-PARTY

PLAINTIFF-RESPONDENT-APPELLANT.

CRAMER, SMITH & MILLER, P.C., JAMESVILLE (LAUREN M. MILLER OF

COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT.

CHRISTOPHER G. JOHNSON, ROCHESTER, FOR PLAINTIFFS-RESPONDENTS. 

 

Appeal and cross appeals from an order of the Supreme Court,

Steuben County (Joseph W. Latham, A.J.), entered November 4, 2015. 

The order denied the respective motion and cross motions of the

parties for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting the motion in part and

dismissing the complaint and any cross claims against defendant

Corning Natural Gas Corporation, sued herein as Corning National Gas

Corporation, and by granting the cross motion of defendant Village of
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CA 16-01329 

Addison insofar as it sought dismissal of the second cause of action

against it, and as modified the order is affirmed without costs. 

Memorandum: Plaintiffs commenced this action to recover damages

for injuries sustained by the infant plaintiff upon being struck by a

car in the vicinity of some excavation work being carried out by

defendant Village of Addison (Village). To perform that work, the

Village was using a mini-excavator borrowed from third-party defendant

Sullivan Trail Construction Co., Inc. (Sullivan), which had contracted

with defendant Corning Natural Gas Corporation, incorrectly sued as

Corning National Gas Corporation (Corning), and which recently had

been engaged in laying new natural gas lines for Corning in that

vicinity. The infant plaintiff had crossed the street with an adult

in order to watch the excavation work, and he was struck by the

vehicle when he allegedly emerged from behind a pile of dirt placed

partially in the street and attempted to cross back over to his own

yard. Insofar as relevant herein, Corning moved for summary judgment

dismissing the complaint and any cross claims against it on the ground

that it had no involvement in the excavation work being carried out at

the site and thus no duty to prevent the infant plaintiff’s injury. 

Alternatively, Corning sought an order granting it contractual

“indemnification and defense costs” from Sullivan pursuant to its

third-party complaint against Sullivan. The Village cross-moved for

summary judgment dismissing the complaint and all cross claims against

it. Additionally, Sullivan cross-moved for partial summary judgment

dismissing Corning’s third-party complaint against it to the extent

that Corning sought contractual indemnification and damages for breach

of an agreement to procure insurance policies naming Corning as an

additional insured. Supreme Court denied the motion and cross

motions.

With respect to its motion, we conclude that Corning is entitled

to summary judgment dismissing the complaint and any cross claims

against it, and we therefore modify the order accordingly. “In order

to prevail on a negligence claim, a plaintiff must demonstrate (1) a

duty owed by the defendant to the plaintiff, (2) a breach thereof, and

(3) injury proximately resulting therefrom . . . In the absence of a

duty, as a matter of law, there can be no liability” (Pasternack v

Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825, rearg denied 28

NY3d 956 [internal quotation marks omitted]). Here, Corning had no

duty to prevent the infant plaintiff’s accident and thus cannot be

held liable for its occurrence. In any event, Corning established its

“prima facie entitlement to summary judgment by demonstrating that

[it] had no involvement with the subject accident,” and plaintiffs and

the other defendants failed to raise a triable question of fact

(Farrulla v Happy Care Ambulette Inc., 125 AD3d 529, 530; see Pina v

Merolla, 34 AD3d 663, 663-664; see generally Zuckerman v City of New

York, 49 NY2d 557, 562). In view of our determination with respect to

Corning’s entitlement to dismissal of the complaint and any cross

claims against it, we do not address Corning’s “alternative[]”

contentions with respect to its third-party action, and we likewise do

not address the contentions raised by Sullivan on its cross appeal. 

With respect to the Village’s cross motion, we conclude that the
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CA 16-01329 

Village demonstrated its entitlement to summary judgment dismissing

the second cause of action against it on the ground that the

derivative claim asserted therein was not set forth in the notice of

claim served upon the Village. We therefore further modify the order

accordingly. It is a condition precedent to, and indeed an essential

element of, any cause of action for personal injury against a village

that the plaintiff have served upon the village a notice of claim

setting forth, inter alia, the nature of the claim and the items of

damage or injuries claimed to have been sustained (see General

Municipal Law §§ 50-e [1], [2]; 50-i [1]; CPLR 9802, 9901). A

claimant “need not state ‘a precise cause of action in haec verba in a

notice of claim’ ” (Crew v Town of Beekman, 105 AD3d 799, 800), but “a

claimant may not raise in the complaint causes of action or legal

theories that were not directly or indirectly mentioned in the notice

of claim and that change the nature of the earlier claim or assert a

new one” (Moore v County of Rockland, 192 AD2d 1021, 1023; see Finke v

City of Glen Cove, 55 AD3d 785, 786; see also Clare-Hollo v Finger

Lakes Ambulance EMS, Inc., 99 AD3d 1199, 1201). Thus, under the

circumstances herein, the plaintiffs are “foreclosed from asserting a

derivative claim against the [Village]” (Martin v Village of Freeport,

71 AD3d 745, 746; see Adam H. v County of Orange, 66 AD3d 739, 740).

We have considered the Village’s remaining contentions and

conclude that they are without merit.

Entered: April 28, 2017 Frances E. Cafarell

Clerk of the Court