You are here: / / PLAINTIFF COULD NOT PROCEED ON A THEORY NOT RAISED IN THE NOTICE OF CLAIM;...
, ,

PLAINTIFF COULD NOT PROCEED ON A THEORY NOT RAISED IN THE NOTICE OF CLAIM; ALTHOUGH THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL, IT COULD BE CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, held that plaintiff-student could not proceed based upon a theory not included in the notice of claim. Plaintiff, who alleged she was sexually assaulted at a BOCES facility, did not allege in her notice of claim that the school district (North Shore), which did not have custody of her when she was assaulted, was also liable because it had formulated an Individualized Education Program for her. The court noted that the issue, although raised for the first time on appeal, could be considered because it was a question of law that could not have been avoided by the lower court:

“A plaintiff seeking to recover in tort against a municipality must serve a notice of claim to enable authorities to investigate, collect evidence and evaluate the merits of the claim” … . “A notice of claim must set forth, inter alia, the nature of the claim, and the time, place, and manner in which the claim arose” … . “[A] mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by [General Municipal Law § 50-e], not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby” (General Municipal Law § 50-e[6]). Under General Municipal Law § 50-e(6), “[a] notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability” … .

We agree with North Shore that the plaintiff may not proceed under the theory that North Shore negligently failed to formulate an appropriate IEP for her, as the plaintiff did not include this theory in her notice of claim. Although North Shore did not raise this argument before the Supreme Court, we may consider it because “it presents an issue of law that appears on the face of the record, and could not have been avoided had it been raised at the proper juncture” … . In her notice of claim, the only theory of liability that the plaintiff asserted was negligent supervision. In opposition to North Shore’s motion for summary judgment, the plaintiff contended for the first time that North Shore had negligently failed to formulate an appropriate IEP for her. This was not a technical change, but was an impermissible substantive change to the theory of liability … . I. T. K. v Nassau Boces Educ. Found., Inc., 2019 NY Slip Op 08557, Second Dept 11-27-19

 

You might also like
Under the Facts, Family Court Should Not Have Terminated Father’s Parental Rights—No Showing that Termination Would Increase Likelihood of Adoption
THE PLANNING BOARD DID NOT HAVE THE AUTHORITY TO WAIVE OR IGNORE THE REQUIREMENTS OF THE VILLAGE ZONING CODE; THE SPECIAL USE PERMIT SHOULD NOT HAVE BEEN ISSUED AND THE SITE PLAN SHOULD NOT HAVE BEEN APPROVED (SECOND DEPT). ​
Law Firm Representing Wife in a Divorce Proceeding Entitled to Charging Lien Pursuant to Judiciary Law 475 But Not Entitled to Money Judgment with Interest
Herniated Disc not “Serious Injury”—Insufficient Proof of Physical Limitations.
IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DESPITE THE FACT THAT THE ADDRESS FOR DEFENDANT CORPORATION ON FILE WITH THE SECRETARY OF STATE WAS INCORRECT, DEFENDANT WAS ENTITLED TO VACATE THE DEFAULT JUDGMENT ON THE GROUND DEFENDANT WAS NOT MADE AWARE OF THE ACTION IN TIME TO DEFEND (SECOND DEPT).
DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR.
IN A FORECLOSURE ACTION THE BANK MUST PROVE COMPLIANCE WITH RPAPL 1306 WHICH REQUIRES PROOF PAPERS WERE FILED WITHIN THREE BUSINESS DAYS OF MAILING THE RPAPL 1304 NOTICE OF DEFAULT; HERE THERE WAS NO PROOF WHEN THE RPAPL 1304 NOTICE WAS MAILED, SO THE PROOF OF COMPLIANCE WITH RPAPL 1306 WAS INSUFFICIENT (SECOND 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

PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF... ATTORNEY FOR THE CHILD PROPERLY AWARDED ATTORNEY’S FEES OF OVER $34,000...