Kwame Yeboah, Appellant, v. New York City Transit Authority, Respondent

Kwame Yeboah, Appellant, v New York City Transit Authority, Respondent. [671 NYS2d 46] [MAJORITY] —Order, Supreme Court, New York County (Robert Lippmann, J.), entered December 17, 1996, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. The grant of summary judgment to defendant was proper since plaintiff, in response to defendant’s summary judgment motion, failed to adduce evidence raising a triable issue as to whether defendant had been negligent (see, Alavarez v Prospect Hosp., 68 NY2d 320, 324). In particular, plaintiff provided no evidentiary basis for its claim that defendant’s employees had knowingly permitted a bicycle to be carried upon a subway train in violation of defendant’s rules. Nor was the mere presence of someone carrying a bicycle within the subway sufficiently indicative of any negligence on the part of defendant to sustain this action. Finally, the court appropriately concluded that plaintiffs notice of claim was insufficient to alert defendant to a claim of negligence based upon the acts of a subway conductor in operating the doors of a train, which factual theory was not alleged by plaintiff until some three years after plaintiffs accident (see, Brown v New York City Tr. Auth., 172 AD2d 178; O’Brien v City of Syracuse, 54 NY2d 353, 358). Concur — Milonas, J. P., Nardelli, Mazzarelli and Saxe, JJ.