In this personal injury matter, plaintiff offered a new theory of negligence by way of a supplemental bill of particulars, which was served without leave of the court and after the note of issue had been filed. The Second Department said it was too late, in Medina v. Sears, Roebuck, which was decided on June 26, 2007. Noting that a plaintiff may successfully oppose a summary judgment motion by relying on an unpleaded cause of action which is supported by plaintiff's submissions, the court said that the "protracted delay" in this instance warranted dismissal.