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New York Court Precludes Plaintiff from Raising Theory of Recovery in Opposition To Summary Judgment

Palka v. Village of Ossining

The Appellate Division, Second Department recently reaffirmed the longstanding principle that a plaintiff cannot raise a new theory of liability in opposition to a motion for summary judgment if that theory is not contained within the complaint or bill of particulars. Notably, the Court did not allow the plaintiff to amend the pleadings on appeal, even though such leave is freely granted in New York.

In Palka v. Village of Ossining, 2014 NY Slip Op 05848, ___ A.D.3d ____ (2d Dept. 2014), the court granted summary judgment to defendants dismissing the complaint.

Plaintiff allegedly slipped and fell on ice on a sidewalk adjacent to defendant’s restaurant. The plaintiff alleged the owners of the premises abutting the sidewalk were negligent in their snow removal efforts. Defendants moved for summary judgment on the grounds that the Village Code did not impose tort liability upon them for a failure to remove snow and ice from the sidewalk. In the pleadings, plaintiff did not allege that defendants created the condition. Plaintiff’s opposition papers, for the first time, alleged that the defendants were negligent because they created the condition.

The lower court granted the restaurant owners’ motion for summary judgment. Plaintiff appealed arguing, inter alia, that the restaurant owners failed to establish their prima facie entitlement to judgment as a matter of law because they did not rule out whether or not they created the condition.

The court reaffirmed the principle 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.”

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