| Darrisaw v Strong Mem. Hosp. |
| 2010 NY Slip Op 05072 [74 AD3d 1769] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Erica Y. Darrisaw, as Administratrix of the Estate of Dolores N.Schulyer, Deceased, Appellant, v Strong Memorial Hospital, a Division of University ofRochester, et al., Respondents. |
—[*1] Osborn, Reed & Burke, LLP, Rochester (Christian C. Casini of counsel), fordefendants-respondents.
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 ofdefendants for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff's decedent in this negligence action was injured when she fell atdefendant hospital, fracturing her ankle. Decedent was seated in a chair in her hospital room, andshe refused the offer of defendant nurse to assist her in leaving the chair in order to walk aroundthe nurses' station. According to decedent, defendant nurse touched her arm while she wasattempting to stand. Supreme Court properly granted defendants' motion for summary judgmentdismissing the complaint. In support of their motion, defendants submitted the depositiontestimony of decedent in which she stated that defendant nurse did not apply force to her arm inany way that caused her to fall. When asked if she knew what caused her to fall, decedent statedthat she did not know, but that she may have been startled by defendant nurse's light touch to herelbow. Defendants thus established their entitlement to judgment as a matter of law, and plaintifffailed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d557, 562 [1980]). " 'Since it is just as likely that the accident could have been caused by someother factor, such as a misstep or loss of balance, any determination by the trier of fact as to thecause of the accident would be based upon sheer speculation' " (McGill v United ParcelServ., Inc., 53 AD3d 1077, 1077 [2008]; see Robinson v Lupo, 261 AD2d525, 525-526 [1999]).
We further conclude that plaintiff improperly contended for the first time in opposition todefendants' motion that defendants failed to provide decedent with adequate supervision, and wetherefore do not address that contention. Plaintiff alleged in the complaint that decedent was[*2]injured specifically because defendant nurse "carelessly andnegligently grabbed [decedent's] arm causing her to fall to the floor." We therefore conclude thatthere 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, 281AD2d 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 ofliability in the bill of particulars, we similarly conclude that it should not be addressed. It is wellsettled that "a bill of particulars is intended to amplify the pleadings, limit the proof, and preventsurprise at trial . . . Whatever the pleading pleads, the bill must particularize sincethe 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 toallege a new theory not originally asserted in the complaint" (Linker v County ofWestchester, 214 AD2d 652, 652 [1995] [internal quotation marks omitted]; see Melinov Tougher Heating & Plumbing Co., 23 AD2d 616, 616-617 [1965]). "[T]he pleading heregives 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 inaccordance with the following memorandum.
Peradotto and Green, JJ. (dissenting in part). We respectfully dissent in part. In our view,Supreme Court erred in granting defendants' motion for summary judgment dismissing thecomplaint insofar as the complaint, as amplified by the bill of particulars, alleges negligentsupervision.
As noted by the majority, plaintiff's decedent in this negligence action was injured when shefell at defendant hospital, fracturing her ankle. Decedent was sitting in a chair in her hospitalroom when defendant nurse (nurse) informed her that decedent needed to take a walk. The nurseoffered to assist decedent in getting up from the chair, but decedent declined that offer. Whiledecedent was in the process of standing up, the nurse touched decedent's right elbow. Accordingto decedent, the nurse's actions startled her and she fell to the floor.
In our view, defendants failed to establish as a matter of law that they provided decedentwith adequate supervision or that any failure to supervise decedent in a proper manner was not aproximate cause of her fall (see generally Zuckerman v City of New York, 49 NY2d557, 562 [1980]; M.S. v County ofOrange, 64 AD3d 560, 561-562 [2009]). In support of their motion, defendantscontended only that decedent's deposition testimony established that the nurse did not applysufficient force to decedent's arm to cause decedent to fall, and that decedent did not know whatcaused her to fall. Defendants did not so much as assert, let alone establish, that they providedadequate assistance to decedent in ascending from the chair or that they adequately superviseddecedent to prevent her from falling. Indeed, the nurse testified at her deposition that she did notassist decedent in getting up from the chair even though decedent told her that another hospitalemployee had helped her walk to the chair and that decedent required the assistance of a cane inambulating. Defendants also submitted the deposition testimony of decedent, in which she statedthat the nurse did not catch her or lower her to the ground. Thus, in our view, by their ownsubmissions defendants raised an issue of fact whether the nurse should have done more to assistdecedent in getting up from the chair or in preventing decedent from falling.
Contrary to the conclusion of the majority, plaintiff did not contend for the first time inopposition to defendants' motion that defendants failed to provide decedent with adequatesupervision. Rather, decedent alleged in her bill of particulars that defendants "failed to prevent[her] from falling to the floor." We further disagree with the majority's conclusion that plaintiffraised a new theory of liability in her bill of particulars by alleging that defendants failed toprevent her from falling to the floor. The majority relies on, inter alia, Linker v County of[*3]Westchester (214 AD2d 652, 652 [1995]) for theproposition that "[a] bill of particulars may not be used to allege a new theory not originallyasserted in the complaint." In that case, the Second Department concluded that the motion courtdid not improvidently exercise its discretion in precluding the plaintiff from amending her bill ofparticulars in a negligence action to include references to the defendants' "intentional, willful, orwanton conduct since [such] claims were not previously pleaded" (id. at 652-653). Here,the complaint asserts a cause of action sounding in negligence based on the conduct of the nursein touching decedent's arm and, as amplified by the bill of particulars, based on defendants'alleged failure to provide decedent with adequate supervision (see generally Gross v Hertz Local EditionCorp., 72 AD3d 1518 [2010]). Thus, the bill of particulars in this case did not allege anew theory of liability but, rather, appropriately specified "the acts or omissions constituting thenegligence claimed" in the complaint (CPLR 3043 [a] [3]).
Inasmuch as defendants failed to meet their initial burden with respect to the claim that theyfailed to provide decedent with adequate supervision, we conclude that the burden never shiftedto plaintiff to raise a triable issue of fact with respect to that claim (see generally Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). We therefore would modify theorder by denying defendants' motion in part and reinstating the complaint insofar as thecomplaint, as amplified by the bill of particulars, alleges negligent supervision.Present—Martoche, J.P., Smith, Fahey, Peradotto and Green, JJ.