Opinion
No. CA 09-01854.
Decided January 11, 2011.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered June 11, 2010. The Appellate Division, with two Justices dissenting in part, affirmed an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), which had granted a motion for summary judgment by defendants dismissing the complaint.
Plaintiff's decedent 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. 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.
The Appellate Division concluded that defendants established their entitlement to judgment as a matter of law and that plaintiff failed to raise an issue of fact. The Court further held that plaintiff improperly contended for the first time in opposition to defendants' motion that defendants failed to provide decedent with adequate supervision since there was no reference in the complaint to the adequacy of the supervision provided to decedent. The Appellate Division added that even assuming, arguendo, plaintiff may be deemed to have raised the theory of inadequate supervision in the bill of particulars, it should not be addressed, since a bill of particulars is intended to amplify the pleadings, limit the proof, and prevent surprise at trial; it may not be used to allege a new theory not originally asserted in the complaint.
Darrisaw v Strong Mem. Hosp., 74 AD3d 1769, affirmed.
Kite Beaumont, P.C., Albany ( John H. Beaumont of counsel), for appellant.
Osborn, Reed Burke, LLP, Rochester ( Christian C. Casini of counsel), for respondents.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed with costs. We conclude defendants demonstrated their entitlement to summary judgment on the negligence cause of action. In opposition, plaintiff failed to adduce sufficient evidence to raise a triable issue of fact on the allegations that Nurse Baldwin grabbed decedent's arm or caused her to fall to the ground.
Additionally, we agree with the Appellate Division majority that plaintiffs negligent supervision claim is not before the court because neither the cause of action nor its underlying facts were raised in the complaint.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.