Ward v City of New York, 2011 NY Slip Op 08202 [89 AD3d 532]

November 15, 2011

Appellate Division, First Department

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Law Offices of Paul L. Brozdowski, LLC, Cortlandt Manor (Paul L. Brozdowski of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.

Order, Supreme Court, New York County (Lottie E. Wilkins, J.), entered June 11, 2010, which granted defendants’ motion to dismiss the complaint, and denied plaintiff’s cross motion to reopen her case in chief, unanimously affirmed, without costs.

At trial, plaintiff’s counsel unequivocally stated that the sole theory of recovery upon which plaintiff’s claims were premised was that of prior written notice to the City. Therefore, plaintiff waived affirmative negligence as a theory of liability, and her arguments pertaining thereto are not preserved for review ( see Spierer v Bloomingdale’s , 44 AD3d 336 [2007]).

Supreme Court providently exercised its discretion by denying plaintiff’s motion to reopen.

We have considered plaintiff’s remaining contentions and find them unpersuasive. Concur—Mazzarelli, J.P., Catterson, Moskowitz, Renwick and Abdus-Salaam, JJ..