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Causes of Action Not in Notice of Claim Dismissed.

The Second Department affirmed the dismissal of a complaint because the complaint asserted theories not mentioned in the notice of claim.  “A party may not add a new theory of liability which was not included in the notice of claim …”.  Williams vs County of Westchester, 2011-10614, Index No. 15002/08 Second Dept. 2-20-13

 

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DEFENDANT’S LEVEL THREE SEX OFFENDER ADJUDICATION SHOULD NOT HAVE BEEN VACATED, HIS SENTENCE ON A SEX OFFENSE WAS INTERRUPTED WHEN THE PAROLE BOARD DECLARED HIM DELINQUENT, WHEN DEFENDANT RETURNED TO STATE CUSTODY AFTER A SUBSEQUENT MURDER CONVICTION, HIS SEX OFFENSE SENTENCE RESUMED MAKING HIM SUBJECT TO SORA (SECOND DEPT).
EXCEPTION TO FINALITY RULE WHERE IT IS CLEAR FURTHER ADMINISTRATIVE PROCEEDINGS WOULD BE FUTILE; DEVELOPER DID NOT HAVE A PROPERTY INTEREST IN A SITE PLAN APPROVAL WHICH WOULD SUPPORT A VIOLATION-OF-DUE-PROCESS CAUSE OF ACTION.
COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM; INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM; FLOOD DAMAGE RESULTED FROM DREDGING OPERATION.
FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT).
DUCT TAPE USED TO SILENCE AND RESTRAIN THE VICTIM WAS A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE ROBBERY FIRST STATUTE, KIDNAPPING BASED UPON THE RESTRAINT OF THE VICTIM DID NOT MERGE WITH ROBBERY, DISSENT DISAGREED (SECOND DEPT).
PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT).
FAMILY COURT SHOULD HAVE ISSUED AN ORDER MAKING FINDINGS TO ALLOW THE CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS, IT WAS NOT IN THE CHILDREN’S BEST INTERESTS TO RETURN TO HONDURAS (SECOND DEPT). ​
DEFENDANT OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED; THE LEASE DID NOT OBLIGATE THE LANDLORD TO MAINTAIN THE AREA AND NO STATUTORY VIOLATION WAS ALLEGED (SECOND DEPT).

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Late Notice of Claim Disallowed. Failure to Plead Res Ipsa Loquitur Does Not Preclude Application of Theory...