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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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DESPITE A SMALL HOME OFFICE, DEFENDANT WAS ENTITLED TO THE LIABILITY EXEMPTION FOR OWNER-OCCUPIED RESIDENCES IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT).
PLAINTIFF WAS INJURED WHEN HE ATTEMPTED TO AVOID A FALL FROM A SCAFFOLD WHEN THE PLANK HE WAS STANDING ON SHIFTED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).
IN THIS VEHICLE ACCIDENT CASE, PLAINTIFF ENTERED AN ARBITRATION AGREEMENT WHICH INDICATED THE AWARD WOULD BE BETWEEN $0 AND $50,000, BUT THE POLICY LIMITS WERE $100,000/300,000; THE UNILATERAL MISTAKE BY PLAINTIFF’S ATTORNEY RE: THE POLICY LIMITS WAS NOT INDUCED BY DEFENDANT OR DEFENDANT’S CARRIER, THEREFORE RESCISSION OF THE AGREEMENT WAS NOT AN AVAILABLE REMEDY (SECOND DEPT).
Right to Call and Question Witnesses.
DEFENDANT DID NOT OFFER PROOF OF WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON WATER WAS LAST CLEANED OR INSPECTED; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS.
COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY.
THE PETITIONER’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE OBJECTIONS TO PROBATE ALLEGING LACK OF DUE EXECUTION AND UNDUE INFLUENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

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