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MINOR v. EAST HARLEM TUTORIAL PROGRAM, INC.

153262/2017. Appeal No. 11904. Case No. 2020-00457.

187 A.D.3d 408 (2020)

129 N.Y.S.3d 755

2020 NY Slip Op 05288

Jadeen Minor, Respondent, v. East Harlem Tutorial Program, Inc., et al., Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided October 1, 2020.

The design defect raised in plaintiff's opposition to the motion was a new theory that was not sufficiently pleaded to avoid surprise or prejudice (see Biondi v Behrman, 149 A.D.3d 562, 563-564 [1st Dept 2017], lv dismissed in part and denied in part 30 N.Y.3d 1012 [2017]). Regardless, defendants established prima facie that plaintiff's fall on a staircase in their building was not caused...

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