ANDREW EDWORTHY PLAINTIFF APPELLANT v. VILLAGE OF WHITESBORO DEFENDANT AND ROBERT MEYER DEFENDANT RESPONDENT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he tripped or slipped and fell on an uneven, icy stretch of pavement located in front of residential property owned by Robert A. Meyer (defendant) and located in defendant Village of Whitesboro (Village). In prior motion practice, Supreme Court denied plaintiff's application for leave to serve a late notice of claim against the Village and dismissed the complaint against the Village. Plaintiff appeals from an order that, inter alia, granted defendant's subsequent motion for summary judgment dismissing the complaint against him. We affirm.

Plaintiff contends that the court misapprehended the law regarding public nuisance and that it therefore erred in granting the motion with respect to his purported public nuisance claim. Even assuming, arguendo, that the court misapprehended the law regarding public nuisance, we agree with defendant that the court should not have considered the merits of that theory of recovery inasmuch as it was raised for the first time in opposition to the motion and was not pleaded in the complaint as amplified by the bill of particulars. Contrary to plaintiff's contention, defendant preserved this alternative ground for affirmance by raising it in his reply to plaintiff's opposition to the motion, and thus it is properly before us (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]).

It is well settled that where, as here, a party moves for summary judgment, a “court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint” as amplified by the bill of particulars (Mezger v Wyndham Homes, Inc., 81 AD3d 795, 796 [2d Dept 2011]; see Stewart v Dunkleman, 128 AD3d 1338, 1341 [4th Dept 2015], lv denied 26 NY3d 902 [2015]; Ostrov v Rozbruch, 91 AD3d 147, 154 [1st Dept 2012]). In determining whether a new theory of liability has been improperly asserted by a plaintiff, we must initially focus on the allegations in the complaint (see Clark v Cucinotta, 229 AD3d 1106, 1107 [4th Dept 2024]; see generally Darrisaw v Strong Mem. Hosp., 74 AD3d 1769, 1770 [4th Dept 2010], affd 16 NY3d 729 [2011]), and “examine whether the allegedly new theory was sufficiently pleaded to avoid surprise and prejudice to defendants” (Clark, 229 AD3d at 1107 [internal quotation marks omitted]; see Valette v Correa, 216 AD3d 500, 500 [1st Dept 2023]; see generally Byrnes v Satterly, 85 AD3d 1711, 1712 [4th Dept 2011]).

Upon review of the complaint, we conclude that it is based solely on negligence and does not contain a separate cause of action for public nuisance (see Heather J. v Rochester Regional Health, 247 AD3d 1594, 1595 [4th Dept 2026]). Even assuming, arguendo, that plaintiff asserted that theory in the bill of particulars by using the term “public nuisance” to describe the condition of the stretch of pavement on which plaintiff fell, we conclude that it was improperly asserted therein as a new theory. It is well settled that “a bill of particulars is intended to amplify the pleadings, limit the proof, and prevent surprise at trial ․ Whatever the pleading pleads, the bill must particularize since the bill is intended to [afford] the adverse party a more detailed picture of the claim ․ being particularized ․ A bill of particulars may not be used to allege a new theory not originally asserted in the complaint” (Darrisaw, 74 AD3d at 1770 [internal quotation marks omitted]).

We have considered plaintiff's remaining contention and conclude that it does not warrant modification or reversal of the order.

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court