This is sufficient to demonstrate that he is "acquainted with the facts", a standard which is not synonymous with "personal knowledge". In addition, his sources are averred as being "records and statements of officers, agents and employees of defendant". The Assistant Attorney-General deposes, upon information and belief, that its contents are true. Specifically, CPLR 3020 (d) (2) states: "if the party is the state, a governmental subdivision, board, commission, or agency, or a public officer in behalf of any of them, the verification may be made by any person acquainted with the facts" (emphasis added). (See, Baldwin v Tinker, 48 Misc.2d 362 Matter of Ross, 34 Misc.2d 1018 Lipsky v Commerce-Pacific, 134 N.Y.S.2d 147 3 Weinstein-Korn-Miller, N Y Civ Prac ¶ 3044.03.)ĬPLR 3020 (d) deals with by whom the required affidavit shall be made. It has been held that the rules applicable to verification of pleadings should be utilized in the case of a bill of particulars. The court reaffirmed the principle that “plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars.Uniformly, in tort actions against the State of New York, its answers and bills of particulars are verified by the Assistant Attorney-General assigned to the defense of the claim.īy this motion for an order of preclusion on the ground that the bill of particulars of the State's verified answer was not sworn to by a person with actual knowledge of the facts, this long-standing practice is drawn into question.Ī bill of particulars "shall" be verified if the pleading which it amplifies is also verified (CPLR 3044). Plaintiff appealed arguing, inter alia, that the restaurant owners failed to establish their prima facie entitlement to judgment as a matter of law because they did not rule out whether or not they created the condition. The lower court granted the restaurant owners’ motion for summary judgment. Plaintiff’s opposition papers, for the first time, alleged that the defendants were negligent because they created the condition. In the pleadings, plaintiff did not allege that defendants created the condition. Defendants moved for summary judgment on the grounds that the Village Code did not impose tort liability upon them for a failure to remove snow and ice from the sidewalk. The plaintiff alleged the owners of the premises abutting the sidewalk were negligent in their snow removal efforts. Plaintiff allegedly slipped and fell on ice on a sidewalk adjacent to defendant’s restaurant. 2014), the court granted summary judgment to defendants dismissing the complaint. Village of Ossining, 2014 NY Slip Op 05848, _ A.D.3d _ (2d Dept. Notably, the Court did not allow the plaintiff to amend the pleadings on appeal, even though such leave is freely granted in New York. The Appellate Division, Second Department recently reaffirmed the longstanding principle that a plaintiff cannot raise a new theory of liability in opposition to a motion for summary judgment if that theory is not contained within the complaint or bill of particulars. New York Court Precludes Plaintiff from Raising Theory of Recovery in Opposition To Summary Judgment
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