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LIABILITY OF MEMBERS OF A LIMITED LIABILITY COMPANY, PRECLUSION OF FRAUD AND NEGLIGENT MISREPRESENTATION CAUSES ACTION WHICH DUPLICATE BREACH OF CONTRACT ALLEGATIONS, AND CRITERIA FOR A RICO MAIL FRAUD CAUSE OF ACTION DISCUSSED IN SOME DEPTH.

In an action against a limited liability company alleging breach of contract and fraudulent inducement relating to the design, construction and marketing of a condominium, the Second Department included substantial discussions of, inter alia, the liability of members of limited liability companies, including the criteria for piercing the corporate veil in this context, the preclusion of fraud and negligent misrepresentation causes of action which are duplicative of breach of contract allegations, and the criteria for a RICO mail fraud cause of action. With respect to the liability of members of limited liability companies, the court explained:

 

… [A] member of a limited liability company will not be held liable for the liabilities of the company solely by reason of being a member of the company or acting in such capacity or participating in the conduct of the business of the company (see Limited Liability Company Law § 609[a]). “[M]embers of limited liability companies, such as corporate officers, may be held personally liable if they participate in the commission of a tort in furtherance of company business” … . * * *

A member of a limited liability company “cannot be held liable for the company’s obligations by virtue of his [or her] status as a member thereof” … . “[A] party may seek to hold a member of an LLC individually liable despite this statutory proscription by application of the doctrine of piercing the corporate veil” … .

To state a cause of action under the doctrine of piercing the corporate veil, the “plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation [or LLC] and abused the privilege of doing business in the corporate [or LLC] form to perpetrate a wrong or injustice'” … “Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to LLC formalities, inadequate capitalization, commingling of assets, and the personal use of LLC funds” … . Board of Mgrs. of Beacon Tower Condominium v 85 Adams St., LLC, 2016 NY Slip Op 00692, 2nd Dept 2-3-16

 

CORPORATION LAW (LIABILITY OF MEMBERS OF LIMITED LIABILITY COMPANIES)/LIMITED LIABILITY COMPANIES (LIABILITY OF MEMBERS)/PIERCING THE CORPORATE VEIL (LIMITED LIABILITY COMPANIES)/CONTRACT LAW (PRECLUSION OF DUPLICATIVE FRAUD AND MISREPRESENTATION CAUSES OF ACTION)/MAIL FRAUD (RICO PLEADING REQUIREMENTS)/RICO (CIVIL, MAIL FRAUD PLEADING REQUIREMENTS)

QUESTIONS OF FACT WHETHER THERE WAS A MEETING OF THE MINDS AND WHETHER WRITINGS, INCLUDING AN EMAIL, SATISFIED THE STATUTE OF FRAUDS.

The Second Department, in a contract action, determined there were questions of fact precluding summary judgment in a contract action. The court explained the black letter law re: a “meeting of the minds” and writings, including emails, sufficient to satisfy the statute of frauds:

 

” In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look . . . to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds'” … . While it is the responsibility of the court to interpret written instruments, where a finding of whether an intent to contract is dependent as well on other evidence from which differing inferences may be drawn, a question of fact arises … . Here, the evidence submitted by the plaintiffs failed to eliminate triable issues of fact regarding whether there was a meeting of the minds sufficient to give rise to a binding and enforceable contract. …

To satisfy the statute of frauds, an agreement “need not be contained in one single document, but rather may be furnished by piecing together other, related writings” … . Further, all of the terms of the contract “must be set out in the various writings presented to the court, and at least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged” … . “An e-mail sent by a party, under which the sending party’s name is typed, can constitute a [signed] writing for [the] purposes of the statute of frauds” … . Here, the terms of the alleged agreement were set forth in various writings, including an email and an assignment signed by the plaintiff … . Agosta v Fast Sys. Corp., 2016 NY Slip Op 00699, 2nd Dept 2-3-16

 

MALICIOUS PROSECUTION (QUESTIONS OF FACT RE: ABSENCE OF PROBABLE CAUSE AND PASSING FALSE INFORMATION TO THE PROSECUTOR PRECLUDED SUMMARY JUDGMENT IN FAVOR OF POLICE OFFICERS)/FALSE ARREST (QUESTIONS OF FACT RE: ABSENCE OF PROBABLE CAUSE PRECLUDED SUMMARY JUDGMENT IN FAVOR OF POLICE OFFICERS)

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DESPITE THE HUSBAND’S EXTRAORDINARY WEALTH, THE WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE PRENUPTIAL AGREEMENT SHOULD NOT HAVE SURVIVED SUMMARY JUDGMENT.

The First Department, in a full-fledged opinion by Justice Richter, over a full-fledged concurring opinion and a full-fledged dissenting opinion, determined the wife’s action to set aside a prenuptial agreement, on the ground of overreaching, should have been dismissed. The fact that the husband’s net worth allegedly was $188 million in 2013, and the resulting contrast between what the husband could afford to provide and what the prenuptial agreement called for, among several other factors, raised a question of fact about “overreaching” in the eyes of the dissent. The arguments raised in the three opinions are too lengthy and detailed to fairly summarize here. On the issue of overreaching, the majority wrote:

 

Here, the wife’s motion did not challenge the prenuptial agreement on the ground that it is the product of coercion, duress or fraud. Nor did the wife argue that the agreement’s terms as a whole are unconscionable. Rather, her only claim was that the agreement is manifestly unfair due to the husband’s overreaching … . Although no actual fraud need be shown to set aside the agreement on this ground, the challenging party must show overreaching in the execution, such as the concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception … . In addition, the challenging party must show that the overreaching resulted in terms so manifestly unfair as to warrant equity’s intervention … .

Judged by these standards, the wife has failed to meet her heavy burden to set aside the prenuptial agreement. No issue of fact exists as to whether the husband engaged in overreaching during the negotiations leading up to the execution of the agreement. The agreement was the product of on-and-off discussions that took place over the course of more than a year and a half. Although initially the parties negotiated by themselves, about midway through, the wife retained the services of a partner in a prominent matrimonial firm. Negotiations continued by the parties and their attorneys, with draft agreements exchanged and terms modified. Both the fact that the wife was an active participant in the negotiations, and was the one who was pushing to get the agreement signed, are hard to reconcile with her current claim of overreaching. Gottlieb v Gottlieb, 2016 NY Slip Op 00613, 1st Dept 1-28-16

 

FAMILY LAW (PRENUPTIAL AGREEMENT, WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)/CONTRACT LAW (PRENUPTIAL AGREEMENT, WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)/PRENUPTIAL AGREEMENT (WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)

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CONVERSION, REPLEVIN AND UNJUST ENRICHMENT CAUSES OF ACTION TIME-BARRED, CRITERIA EXPLAINED.

Plaintiff executor sued defendant, Delaine, under conversion, replevin and unjust enrichment theories for artwork which decedent, Arthur, was allegedly entitled to but which decedent never picked up from the warehouse where it was stored. The First Department determined the conversion, replevin and unjust enrichment causes of action were time-barred:

 

Under CPLR 214(3), the statutory period of limitations for conversion and replevin claims is three years from the date of accrual. The date of accrual depends on whether the current possessor is a good faith purchaser or bad faith possessor. An action against a good faith purchaser accrues once the true owner makes a demand and is refused … . This is “because a good-faith purchaser of stolen property commits no wrong, as a matter of substantive law, until he has first been advised of the plaintiff’s claim to possession and given an opportunity to return the chattel” … . By contrast, an action against a bad faith possessor begins to run immediately from the time of wrongful possession, and does not require a demand and refusal … . Thus, “[w]here replevin is sought against the party who converted the property, the action accrues on the date of conversion” … .

Here, plaintiff alleges that Delaine is a wrongful possessor of the Artwork by virtue of her retention thereof in defiance of this Court’s 1993 order. Accordingly, since Delaine was holding the Artwork in bad faith, the demand and return rule does not apply and the three-year limitations period commenced as of the date of the wrongful taking, which occurred when Delaine retained the Artwork after the issuance of our March 18, 1993 order. Thus, plaintiff’s conversion and replevin claims, filed in 2012, are untimely … . * * *

Unjust enrichment occurs when a defendant enjoys a benefit bestowed by the plaintiff without adequately compensating the plaintiff … . The statute of limitations for unjust enrichment generally accrues upon “the occurrence of the alleged wrongful act giving rise to restitution” … . Here, any alleged “enrichment” took place when Delaine retained possession of the Artworks following our 1993 decision. Accordingly, plaintiff’s unjust enrichment claim is also time-barred.  Swain v Brown, 2016 NY Slip Op 00574, 1st Dept 1-28-16

 

CRIMINAL LAW (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)/JURIES (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)/DISQUALIFICATION OF JUROR (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)

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PLAINTIFF’S INABILITY TO SHOW ACTUAL OUT-OF-POCKET LOSS REQUIRED DISMISSAL OF THE FRAUDULENT-INDUCEMENT CAUSE OF ACTION.

The First Department, over a two-justice dissent, determined the complaint alleging fraudulent inducement was properly dismissed for failure to allege out-of-pocket damages. Plaintiff was hired as an at will employee to develop a ramen cuisine for defendant restaurant chain (Chipotle). Plaintiff subsequently learned defendant had entered an agreement with another chef to develop ramen cuisine, the deal had fallen apart and would probably end in litigation. Plaintiff alleged, had he known about the undisclosed agreement with another chef he would not have entered the agreement with Chipotle. Although it was anticipated at the outset plaintiff would work for defendant for three years, and thereafter be entitled to certain specified additional compensation, plaintiff was an at will employee and had been compensated for the work he completed before he was terminated. Therefore, the First Department held, plaintiff could not demonstrate the out-of-pocket loss required for a “fraudulent inducement” cause of action:

 

The facts alleged, even when viewed in a light most favorable to plaintiff, do not give rise to a reasonable inference that he sustained calculable damages based on defendants’ actions. Plaintiff’s employment was at will, and he has no claim of reasonable reliance on representations concerning continued employment … . Any claim that he was deprived of the promised Chipotle stock cannot succeed, given that is undisputed that the express terms of the parties’ agreement required him to be an employee for three years. Nor can he seek damages based on the alleged profits that would have been realized had there been no fraud. When a claim sounds in fraud, the measure of damages is governed by the “out-of-pocket” rule, which states that the measure of damages is “indemnity for the actual pecuniary loss sustained as the direct result of the wrong” … . In other words, damages are calculated to compensate plaintiffs for what they lost because of the fraud, not for what they might have gained in the absence of fraud … . Additionally, plaintiff’s claim that he would have received better remuneration had he partnered with a different entity is inherently speculative and would require any factfinder to engage in conjecture … . Connaughton v Chipotle Mexican Grill, Inc., 2016 NY Slip Op 00273, 1st Dept 1-19-16

 

FRAUD (OUT-OF-POCKET DAMAGES REQUIREMENT)/DAMAGES (FRAUDULENT INDUCEMENT CAUSE OF ACTION MUST BE SUPPORTED BY ALLEGATIONS OF OUT OF POCKET LOSS)/CONTRACT LAW (FRAUDUENT INDUCEMENT CAUSE OF ACTION MUST BE SUPPORTED BY ALLEGATIONS OF OUT OF POCKET LOSS)/EMPLOYMENT LAW (FRAUDULENT INDUCEMENT, AT WILL EMPLOYEE CANNOT RECOVER AS DAMAGES COMPENSATION EMPLOYEE WOULD HAVE RECEIVED IN THE FUTURE BUT FOR THE FRAUD)

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RENTAL PERMIT REQUIRED BY TOWN CODE WAS A CONDITION PRECEDENT TO THE LEASE; CODE PROVISION CREATED A PRIVATE RIGHT OF ACTION TO SEEK RESCISSION OF THE LEASE AND RETURN OF RENT PAID.

The Second Department determined plaintiffs-lessees were entitled to bring a private action (pursuant to a provision of the town code) to rescind a lease, and were entitled to rescission and return of the paid rent. After paying $216,000 to lease defendant’s residential property for approximately 3 1/2 months, the plaintiffs learned defendant did not have a rental permit required by section 270 of the town code. The code provision was enacted to address overcrowding in properties rented for the summer. The Second Department held the code provision created a private right of action and the rental permit was a condition precedent to any lease. With respect to the private right of action, the court wrote:

 

Where, as here, a statute “does not explicitly provide for a private cause of action, recovery may be had under the statute only if a legislative intent to create such a right of action is fairly implied’ in the statutory provisions and their legislative history” … . This inquiry involves three factors: ” (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme'” … . The third factor is often noted to be the “most important” … . Where, as here, the legislature clearly contemplated administrative enforcement of the statute, ” [t]he question then becomes whether, in addition to administrative enforcement, an implied private right of action would be consistent with the legislative scheme'”… .

The plaintiffs satisfied the first and second factors here. Town Code § 270 is intended to benefit the occupants of rental properties in the Town of Southampton by requiring owners to obtain a valid rental permit as a condition precedent to the collection of rent (see Town Code § 270-13). Moreover, the legislative purpose is promoted by preventing owners from profiting from the rental of properties that are overcrowded, substandard, or otherwise violate State and Town laws.

The third factor, requiring that a private cause of action under a statute be consistent with the legislative scheme, has also been satisfied. As the Supreme Court correctly observed, Town Code § 270 is directed toward protecting the health, safety, and well-being of persons renting homes in the Town of Southampton. In that regard, Town Code § 270-6 requires that prior to the issuance of a rental permit, the enforcement authority must “make an on-site inspection of the proposed rental property” to ensure that the property “complies with the New York State Uniform Fire Prevention and Building Code and the Code of the Town of Southampton” (Town Code § 270-6). Although Town Code § 270 is intended to be enforced by designated Town officials and provides for penalties and fines, “without the threat of recoupment of rent, aside from the possibility of administrative enforcement, there is no incentive for a landlord to obtain a license, which is an overriding concern of the Town” … . Ader v Guzman, 2016 NY Slip Op 00137, 2nd Dept 1-13-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER HOTEL DEFENDANT VICARIOUSLY LIABLE FOR NEGLIGENCE OF SNOWMOBILE TOUR GUIDE UNDER APPARENT AGENCY THEORY)/AGENCY (QUESTION OF FACT WHETHER HOTEL DEFENDANT VICARIOUSLY LIABLE FOR NEGLIGENCE OF SNOWMOBILE TOUR GUIDE UNDER APPARENT AGENCY THEORY)

ALTHOUGH THE ORAL CONTRACT CALLED FOR THE MATURATION OF A LOAN AFTER 15 YEARS, THE STATUTE OF FRAUDS DID NOT APPLY BECAUSE IT WAS POSSIBLE TO PERFORM THE CONTRACT WITHIN A YEAR.

In 1998 plaintiff and defendant allegedly entered an oral agreement for a loan of $71,500 at 9% annual interest. The loan matured on December 31, 2013. When plaintiff sued for payment, the defendant sought to dismiss the complaint, arguing the statute of frauds prohibited the oral agreement because the agreement could not be performed within a year. The Second Department affirmed Supreme Court’s denial of the defendant’s motion, finding that it was possible the agreement could have been performed within a year:

 

Pursuant to the statute of frauds, an agreement not reduced to writing is void if, by its terms, it cannot be performed within one year of its making (see General Obligations Law § 5-701[a][1]…). Only those agreements which, by their terms, “have absolutely no possibility in fact and law of full performance within one year” will fall within the statute of frauds … . “As long as the agreement may be fairly and reasonably interpreted such that it may be performed within a year, the Statute of Frauds will not act as a bar however unexpected, unlikely, or even improbable that such performance will occur during that time frame” … .

Here, contrary to the defendant’s contention, the oral agreement between the parties, by its terms, was capable of being performed within one year of its making. As such, the statute of frauds was inapplicable.  JNG Constr., Ltd. v Roussopoulos, 2016 NY Slip Op 00156, 2nd Dept 1-13-16

 

CONTRACT LAW (STATUTE OF FRAUDS DID NOT RENDER AN ORAL CONTRACT TO PAY OFF A LOAN AFTER 15 YEARS VOID)/STATUTE OF FRAUDS (ORAL CONTRACT TO PAY OFF A LOAN AFTER 15 YEARS WAS NOT VOID, CONTRACT COULD HAVE BEEN PERFORMED WITHIN A YEAR)

LOST PROFITS PROPERLY AWARDED FOR WRONGFUL TERMINATION OF SUBCONTRACT; CRITERIA EXPLAINED.

The Second Department determined plaintiff was entitled to lost profits as damages for the wrongful termination of a subcontract. Plaintiff had completed three of seven work items when the contract was terminated and, pursuant to the contract, would have been paid for the remaining four work items in a lump sum and would have been given additional paid work in the form of change orders. The measure of lost-profit damages for the unfinished work was the contractual lump sum minus plaintiff’s anticipated costs. The measure of lost-profit damages for the change orders were the relevant amounts paid to the subcontractor who replaced plaintiff:

 

“A party may not recover damages for lost profits unless they were within the contemplation of the parties at the time the contract was entered into and are capable of measurement with reasonable certainty. The rule that damages must be within the contemplation of the parties is a rule of foreseeability. The party breaching the contract is liable for those risks foreseen or which should have been foreseen at the time the contract was made” … . For damages to be “reasonably certain, does not require absolute certainty. Damages resulting from the loss of future profits are often an approximation. The law does not require that they be determined with mathematical precision. It requires only that damages be capable of measurement based upon known reliable factors without undue speculation” … . Inspectronic Corp. v Gottlieb Skanska, Inc., 2016 NY Slip Op 00155, 2nd Dept 1-13-16

 

CONTRACT LAW (LOST PROFITS PROPERLY AWARDED FOR WRONGFUL TERMINATION OF SUBCONTRACT)/DAMAGES (CONTRACT LAW, LOST PROFITS PROPERLY AWARDED FOR WRONGFUL TERMINATION OF SUBCONTRACT)/LOST PROFITS (PROPERLY AWARDED AS DAMAGES FOR WRONGFUL TERMINATION OF SUBCONTRACT)

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ASSIGNMENT TO PLAINTIFF OF ALL RIGHT, TITLE AND INTEREST TO $626 MILLION IN RESIDENTIAL MORTGAGE-BACKED SECURITIES DID NOT SPECIFICALLY MENTION FRAUD CLAIMS; THE RIGHT TO SUE MORGAN STANLEY FOR FRAUD, THEREFORE, WAS NOT ASSIGNED TO PLAINTIFF.

In 2006 and 2007 plaintiff FSAM bought $626 million in residential mortgage-backed securities (RMBS) from defendant Morgan Stanley. “All right, title and interest” to those securities were then assigned to plaintiff Dexia, which paid FSAM the same amount FSAM paid Morgan Stanley. The plaintiffs, FSAM and Dexia, sued Morgan Stanley, alleging Morgan Stanley knew the RMBS were of poor quality but represented they were prudent AAA-rated securities. The First Department determined the fraud claims did not transfer to Dexia because no specific mention of them was made in the assignment. The court further determined FSAM did not have standing to assert the fraud claims because Dexia paid FSAM for them and FSAM, therefore, could not establish damages:

 

The Court of Appeals recently explained that “the right to assert a fraud claim related to a contract or note does not automatically transfer with the respective contract or note” … . “Thus, where an assignment of fraud or other tort claims is intended in conjunction with the conveyance of a contract or note, there must be some language — although no specific words are required — that evinces that intent and effectuates the transfer of such rights” … . “Without a valid assignment, only the . . . assignor may rescind or sue for damages for fraud and deceit’ because the representations were made to it and it alone had the right to rely on them” … .

We find that plaintiff FSAM’s agreement to deliver “all right, title and interest” in the RMBS to the Dexia plaintiffs did not include fraud claims, since FSAM only assigned rights in the subject securities without explicitly referencing any related tort claims or the overall transaction between FSAM and defendants … .

Because FSAM received from the Dexia plaintiffs the same amount it originally paid for the securities, FSAM cannot establish damages … . Dexia SA/NV v Stanley, 2016 NY Slip Op 00122, 1st Dept 1-12-16

 

CONTRACT LAW (FRAUD CLAIMS NOT SPECIFICALLY MENTIONED IN ASSIGNMENT ARE NOT ASSIGNED)/ASSIGNMENTS (FRAUD CLAIMS NOT SPECIFICALLY MENTIONED IN ASSIGNMENT ARE NOT ASSIGNED)/FRAUD (FRAUD CLAIMS NOT SPECIFICALLY MENTIONED IN ASSIGNMENT ARE NOT ASSIGNED)

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QUESTION OF FACT WHETHER DEFENDANT-CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM AND WHETHER THERE WAS AN INTERVENING, SUPERSEDING CAUSE OF THE INJURY, CRITERIA FOR BOTH EXPLAINED.

The Third Department, reversing Supreme Court, determined defendant-contractor’s motion for summary judgment should not have been granted. Defendant contracted with the NYS Department of Transportation (DOT) to do roadwork. Plaintiff alleged the roadwork caused the car in which he was a passenger to go airborne. The Third Department found that the alleged excessive speed attributed to the driver of the car was not unforeseeable as a matter of law. Therefore, there was a question of fact whether the speed was the superseding cause of the accident. The court explained the law re: tort liability to third persons arising from contract, and an intervening, superseding cause of injury:

 

… “[A] party who enters into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties[;] and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . “The general rule is that ‘[a] builder or contractor is justified in relying upon the plans and specifications which he [or she] has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury'” * * *

… “[W]here the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus” … . Whether an intervening act is a superseding cause is generally a question of fact, but there are circumstances where it may be determined as a matter of law … . Dunham v Ketco, Inc., 2016 NY Slip Op 00082, 3rd Dept 1-7-16

 

 

 

 

 

 

NEGLIGENCE (THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM CANNOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS)/NOTICE OF CLAIM (THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM CANNOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS)/BILL OF PARTICULARS (CANNOT BE SUPPLEMENTED TO INCLUDE THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM)/MUNICIPAL LAW (BILL OF PARTICULARS CANNOT BE SUPPLEMENTED TO INCLUDE THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM)

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