Crawford v. Smithtown Central School District

900 The plaintiff’s infant daughter allegedly sustained personal injuries when she tripped and fell over a rock or a piece of asphalt in the schoolyard of her elementary school during her lunch recess. The defendant Smithtown Central School District (hereinafter the defendant) established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create or have actual or constructive notice of the alleged condition which proximately caused the accident (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). In opposition, the plaintiff failed to raise a triable issue of fact. The Supreme Court properly declined to consider the plaintiffs new theory of liability raised for the first time in opposition to the motion in light of the plaintiffs protracted delay in presenting it (see Horn v Hires, 84 AD3d 1025 [2011]; Medina v Sears, Roebuck & Co., 41 AD3d 798 [2007]). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against it. Dillon, J.E, Leventhal, Belen and Lott, JJ., concur.