Order, Supreme Court, New York County (Eileen A. Rakower), entered on or about August 27, 2008, which denied defendant's motion for summary judgment and granted plaintiff's cross motion for leave to amend the complaint, unanimously reversed, on the law, without costs, the cross motion denied, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendant.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Sweeny, Moskowitz, Acosta, Abdus-Salaam, JJ.
Plaintiff, a school safety officer, had to show a special relationship in order to state a claim for negligent failure to protect her from injury caused by a student (see Dinardo v City of New York, __ NY3d __, 2009 NY Slip Op 8853 ; Cuffy v New York, 69 NY2d 255, 261 ). Since she raised neither that legal theory nor the factual predicate -- an alleged oral promise and policy with the special education dean -- in her notice of claim or her complaint, she could not assert that theory or the facts underlying it for the first time in opposition to the motion for summary judgment (see Brown v New York City Tr. Auth., 172 AD2d 178, 180-181 ). Furthermore, plaintiff's affidavit in opposition was fundamentally and irreconcilably inconsistent with her deposition testimony (see Fernandez v VLA Realty, LLC, 45 AD3d 391 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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