Practice point: In opposition to a motion for summary judgment, a plaintiff may not raise a theory of liability not pleaded in the notice of claim, complaint or bill of particulars.
Practitioners should note that a plaintiff will be precluded from offering trial evidence regarding a theory of liability not set forth in the notice of claim.
Case: Sutin v. Manhattan & Bronx Surface Tr. Operating Auth., NY Slip Op 07032 (1st Dept. 2008)
The opinion is here.
