Darrisaw v. Strong Memorial Hospital

Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered November 10, 2008 in a medical malpractice action. The order granted the motion of defendants for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from is affirmed without costs. Memorandum: Plaintiffs decedent in this negligence action was injured when she fell at defendant hospital, fracturing her ankle. Decedent was seated in a chair in her hospital room, and she refused the offer of defendant nurse to assist her in leaving the chair in order to walk around the nurses’ station. According to decedent, defendant nurse touched her arm while she was attempting to stand. Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint. In support of their motion, defendants submitted the deposition testimony of decedent in which she stated that defendant nurse did not apply force to her arm in any way that caused her to fall. When asked if she knew what caused her to fall, decedent stated that she did not know, but that she may have been startled by defendant nurse’s light touch to her elbow. Defendants thus established their entitlement to judgment as a matter of law, and plaintiff failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “ ‘Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation’ ” (McGill v [1770] United Parcel Serv., Inc., 53 AD3d 1077, 1077 [2008]; see Robinson v Lupo, 261 AD2d 525, 525-526 [1999]). We further conclude that plaintiff improperly contended for the first time in opposition to defendants’ motion that defendants failed to provide decedent with adequate supervision, and we therefore do not address that contention. Plaintiff alleged in the complaint that decedent was injured specifically because defendant nurse “carelessly and negligently grabbed [decedent’s] arm causing her to fall to the floor.” We therefore conclude that there is no reference in the complaint to the adequacy of the supervision provided to decedent. “[A] new theory, presented for the first time in opposition to a motion for summary judgment, cannot bar relief which is otherwise appropriate” (Yaeger v UCC Constructors, 281 AD2d 990, 991 [2001] [internal quotation marks omitted]; see Marchetti v East Rochester Cent. School Dist., 26 AD3d 881 [2006]). Even assuming, arguendo, that plaintiff may be deemed to have raised that theory of liability in the bill of particulars, we similarly conclude that it should not be addressed. 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” (Linker v County of Westchester, 214 AD2d 652, 652 [1995] [internal quotation marks omitted]; see Melino v Tougher Heating & Plumbing Co., 23 AD2d 616, 616-617 [1965]). “[T]he pleading here gives not the slightest indication” of a theory of liability of negligent supervision (Melino, 23 AD2d at 617). All concur except Peradotto and Green, JJ., who dissent in part and vote to modify in accordance with the following memorandum.