Rollins v. New York City Board of Education

541 Plaintiff, a school safety officer, had to show a special relationship in order to state a claim for negligent failure to protect her from injury caused by a student (see Dinardo v City of New York, 13 NY3d 872 [2009]; Cuffy v City of New York, 69 NY2d 255, 261 [1987]). Since she raised neither that legal theory nor the factual predicate — an alleged oral promise and policy with the special education dean — in her notice of claim or her complaint, she could not assert that theory or the facts underlying it for the first time in opposition to the motion for summary judgment (see Brown v New York City Tr. Auth., 172 AD2d 178, 180-181 [1991]). Furthermore, plaintiffs affidavit in opposition was fundamentally and irreconcilably inconsistent with her deposition testimony (see Fernandez v VLA Realty, LLC, 45 AD3d 391 [2007]). Concur — Tom, J.P, Sweeny, Moskowitz, Acosta and Abdus-Salaam, JJ.