You are here: / / In the Absence of Prejudice to Defendants, It Was Not Error to Allow Evidence...
, , ,

In the Absence of Prejudice to Defendants, It Was Not Error to Allow Evidence of a Theory of Liability Not Explicitly Referenced in the Complaint and Bill of Particulars

The Third Department determined evidence of a theory of liability that was not explicitly included in the pleadings and bill of particulars was not error. The theory was implicit in the pleadings and the defendants could not have been surprised by the related evidence. The court noted it would have been better had the plaintiffs moved to conform the pleadings to the evidence:

Generally, a party is limited to presenting evidence at trial that supports a cause of action or theory of recovery that was either pleaded in the complaint or asserted in the bill of particulars … . However, evidence concerning a specific theory or injury not mentioned in the bill of particulars may nonetheless avoid exclusion where such proof necessarily flows from the information conveyed in the pleadings and where the defendants should have been aware of the basis thereof… .

The contested theory of liability in this case is based on the allegedly erroneous interpretation of plaintiff’s February CT scan by Beatty (hereinafter referred to as the Beatty theory). It is worth noting that, because the complaint and bills of particulars do not contain an express articulation of the Beatty theory, the better practice certainly would have been for plaintiff to seek leave to amend his pleadings in advance of trial or at least have moved to conform the pleadings to the proof after the trial was underway. However, we nonetheless find that Supreme Court’s determinations allowing plaintiff to advance the Beatty theory at trial, including permitting plaintiff’s expert to offer testimony on the theory, do not constitute reversible error. In our view, the complaint— * * * which reference[s] the February CT scan as a basis for a departure from accepted medical practice — [was] sufficient to notify defendants of the Beatty theory and, as such, permit that theory of liability to be advanced at trial without prejudice. Simply put, we are unpersuaded by defendants’ position that they were not aware of the Beatty theory as a basis for a potential finding of medical malpractice. Boyer v Kamthan, 2015 NY Slip Op 05983, 3rd Dept 7-9-15

 

You might also like
IN CONSIDERING A MOTION TO DISMISS A PETITON TO MODIFY CUSTODY TO ALLOW RELOCATION, FAMILY COURT MUST ACCEPT THE FACTS ALLEGED IN THE PETITION AS TRUE AND AFFORD PETITIONER EVERY FAVORABLE INFERENCE; MOTHER’S PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (THIRD DEPT).
CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).
IN A PARTIAL CONCURRENCE/PARTIAL DISSENT TWO JUSTICES WOULD HAVE REDUCED DEFENDANT’S SENTENCE TO TIME SERVED IN THE INTEREST OF JUSTICE BECAUSE OF THE EVIDENCE THAT DEFENDANT’S LIFE-EXPECTANCY AFTER REMOVAL OF A BRAIN TUMOR IS TWO TO THREE YEARS, THE DEFENDANT’S AGE AT THE TIME OF THE OFFENSE (18), AND THE DEFENDANT’S ABSENCE FROM THE ROOM WHERE THE VICTIM WAS STABBED (THIRD DEPT).
Only Personnel Records Used to Evaluate Police Officer’s Performance Protected from Disclosure​
In a Class Action Suit, Class-Representatives’ Failure to Keep In Touch With Their Lawyer Justified Their Withdrawal as Class Representatives
THE SUPERIOR COURT INFORMATION (SCI) DID NOT INCLUDE THE TIME OF THE OFFENSE AND WAS THEREFORE JURISDICTIONALLY DEFECTIVE (THIRD DEPT).
Lack of Standing Defense Waived By Absence from Answer—Objections to Authority to Sign Lease Waived by Ratification of the Signed Documents
PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION DESPITE FALLING FROM AN UNSAFE MAKESHIFT PLATFORM MADE BY THE PLAINTIFF (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Wall Surrounding the Edge of a Roof Is Not a Safety Device Defendant Should Have Been Awarded Summary Judgment in Rear-End Collision Case—Fact...