Maria Tiburcio, Appellant, v. New York City Transit Authority, Respondent

Maria Tiburcio, Appellant, v New York City Transit Authority, Respondent. [704 NYS2d 473] [MAJORITY] —Order, Supreme Court, New York County (Robert Lippmann, J.), entered January 26, 1999, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiffs notice of claim was defective since it did not provide defendant with notice of plaintiffs theory of liability, first advanced in plaintiffs deposition more than a year after the accident, that she slipped and fell on subway steps as a result of the absence of a metal tread (see, Chipurnoi v Manhattan & Bronx Surface Tr. Operating Auth., 216 AD2d 171). Since plaintiff was attempting to amend her notice of claim by serving an amended bill of particulars that included this new theory (see, Herron v City of New York, 223 AD2d 676), and the one-year and 90-day limitation period had passed, the IAS Court properly granted defendant’s motion to dismiss the complaint (supra). Concur — Sullivan, P. J., Rosenberger, Mazzarelli, Buckley and Friedman, JJ.