New Claims At The End Of Discovery Are Insufficient (NY)
In Smith v. 3173 Gas Corp. (2d Dept. 2023), the plaintiff sustained injury when she slipped on an entrance/exit ramp as she left a gas station. It was established during testimony that it had been raining at the time of the accident and the ramp was wet. After depositions were completed, but before the Note of Issue was filed, the defendant moved for summary judgment arguing that he could not be held liable because it was still raining at the time of the accident [Derosa v. Zaliy, 189 A.D.3d 1355 (2d Dept. 2007)]. Plaintiff’s counsel then submitted an amended bill of particulars alleging new claims that the ramp itself was defective. The trial court granted defendant’s motion, and plaintiff appealed, alleging that the amended claims were enough to present to a jury. The Second Department affirmed the trial court’s decision, holding that summary judgment in favor of the defendant was proper because the ramp was not defective since it was wet, and it was still raining when the plaintiff fell [Medina v. Sears Roebuck & Co., 41 A.D.3d 798(2d Dept. 2007)]. The Second Department further held that although plaintiff’s amended bill of particulars was proper since it was served prior to the filing of the Note of Issue, it nonetheless failed to provide triable issues of fact to sustain a claim against the defendant. Plaintiff submitted an expert’s report which failed to show how the condition of the ramp itself was the proximate cause of plaintiff’s fall, and plaintiff’s affidavit not only contradicted his prior deposition testimony, but also failed to establish that the ramp itself was the proximate cause of plaintiff’s fall. This case highlights a litigation strategy that is seen from time to time in negligence torts. A plaintiff will proceed through discovery and depositions, and if there is strong evidence to establish a viable defense at trial (or enough evidence for a strong argument on dismissal via summary judgment), then plaintiff will allege new claims or theories on the accident. Of course, plaintiff has the right to amend his bill of particulars before filing the Note of Issue, but often times, it is used as a tactic to create triable issues of fact to defeat summary judgment proceedings and sustain the viability of a claim. The defendant in this case properly highlighted the fact that plaintiff’s new allegations and theories of the accident contradicted her prior testimony and even then, still could not sustain her claim. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, contact Tom Bracken.
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