Opinion
350 CA 15-01147.
04-29-2016
Rosemary WHITE, Plaintiff–Appellant, v. The DIOCESE OF BUFFALO, New York, Defendant–Respondent.
Brown Chiari LLP, Lancaster (Angelo S. Gambino of Counsel), for Plaintiff–Appellant. Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Katie Renda of Counsel), for Defendant–Respondent.
Brown Chiari LLP, Lancaster (Angelo S. Gambino of Counsel), for Plaintiff–Appellant.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Katie Renda of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., DeJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Plaintiff commenced this action seeking damages for injuries she sustained when she was bitten by a dog owned by a priest at premises owned by Sacred Heart Roman Catholic Church (Sacred Heart). Supreme Court properly granted defendant's motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7] ). We reject plaintiff's contention that the complaint alleges a theory that defendant was negligent in its retention and/or supervision of the priest assigned to Sacred Heart. Although “[i]t is axiomatic that plaintiff's complaint is to be afforded a liberal construction, that the facts alleged therein are accepted as true, and that plaintiff is to be afforded every possible inference in order to determine whether the facts alleged in the complaint ‘fit within any cognizable theory’ ” (Palladino v. CNY Centro, Inc., 70 A.D.3d 1450, 1451, 895 N.Y.S.2d 614, quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ), we conclude that the complaint herein “ ‘gives not the slightest indication of a theory of liability of negligent supervision [or retention]’ ” (Darrisaw v. Strong Mem. Hosp., 74 A.D.3d 1769, 1770, 902 N.Y.S.2d 286, affd. 16 N.Y.3d 729, 917 N.Y.S.2d 95, 942 N.E.2d 305 ). Furthermore, to the extent that plaintiff alleged such a theory in her bill of particulars, it is well established that the “purpose of the bill of particulars is to amplify the pleadings ..., and [it] ‘may not be used to supply allegations essential to a cause of action that was not pleaded in the complaint’ ” (Paterra v. Arc Dev. LLC, 136 A.D.3d 474, 475, 24 N.Y.S.3d 631 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.