Second Department:

New Theory of Liability Cannot Bar Summary Judgment

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision in which the Appellate Division addressed the issue of when a plaintiff raises new theories of liability.

When a plaintiff moves for summary judgment, it is always critical to compare the grounds on which he moves for summary judgment with the theories of liability that he has advanced in his complaint and in his bill of particulars.  In a recent case, the Second Department showed why this is so important.  In Palka v. Village of Ossining, a case in which we defended the co-defendant, the plaintiff allegedly slipped and fell on an icy condition located on the sidewalk near the curbline, adjacent to 84 Croton Avenue in the Village of Ossining.  The plaintiff thereafter commenced an action against the Village of Ossining (“Village”) and Chi His Tan and Atlantic Bar & Restaurant Corp. (“Atlantic”), who we represented, the alleged owners of the abutting sidewalk, alleging that they were negligent in their snow removal efforts.

The defendants moved for summary judgment.  The Village alleged that they had not received prior written notice of the alleged defective condition as required by the Village of Ossining Village code.   Atlantic moved for summary judgment since the Town of Ossining Village code did not impose tort liability on adjoining landowners for failure to remove snow and ice from the sidewalk as is required under case law to hold an adjoining landowner responsible.  The lower court denied the Village's motion and granted Atlantic’s motion.  The plaintiff and the Village appealed to the Appellate Division.

The Appellate Division granted summary judgment to both defendants and dismissed the complaint.  The Second Department found that the plaintiff had failed to comply with the Village law requiring prior written notice of the defect.  Thus, summary judgment should have been granted to the Village.  The Appellate Division also found that the Supreme Court had properly granted Atlantic’s motion for summary judgment.  The Appellate Division found that although the Village code required a landowner to remove snow and ice from abutting sidewalks, it did not specifically impose tort liability for breach of that duty and therefore, in the absence of imposing tort liability, Atlantic could not be held responsible for failing to remove snow and ice from the sidewalk.  Critically, the Appellate Division noted that the first time the plaintiffs alleged that Atlantic was negligent because they created the condition was in their opposition papers to summary judgment.

The Appellate Division wrote that “plaintiff cannot for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars”.  Thus, it is always important to scrutinize the theories that the plaintiff raises in their complaint and bill of particulars, and when moving for summary judgment, to always be aware of any new theories that the plaintiff seeks to raise in opposition papers to summary judgment.

Here, plaintiff’s failure to raise that theory early probably cost him the case since a judge could easily have concluded that whether Atlantic created the condition was a material issue of fact for a jury to decide.

Should you have any questions, please call.

Thomas M. Bona