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Schonbrun v. DeLuke

Supreme Court of New York, Third Department

April 5, 2018

DAVID SCHONBRUN, Individually and as Parent and Guardian of ANDREW SCHONBRUN et al., Infants, Respondent,
v.
BRIGITTE A. DeLUKE, Defendant, and CAPITAL DISTRICT TRANSPORTATION AUTHORITY (CDTA) et al., Appellants.

          Calendar Date: February 15, 2018

          O'Connor, O'Connor, Bresee & First, PC, Albany (Danielle N. Meyers of counsel), for appellants.

          Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for respondent.

          Before: Garry, P.J., Devine, Mulvey and Aarons, JJ.

          MEMORANDUM AND ORDER

          MULVEY, J.

         Appeal from an order of the Supreme Court (Ryba, J.), entered April 4, 2017 in Albany County, which, among other things, granted plaintiff's motion to compel discovery.

         On June 22, 2015, plaintiff's infant children were struck by a vehicle after they disembarked from a bus owned by defendant

         Capital District Transportation Authority (hereinafter CDTA) and operated by its employee, defendant Edward Morin. Plaintiff, individually and on behalf of his children, thereafter commenced this action seeking to recover damages sustained as a result of the accident. After Morin testified at his deposition that he had been involved in at least six prior accidents while employed by CDTA, plaintiff moved to compel the production of all accident reports involving Morin that predated the incident in question. Finding that such prior accident reports were relevant to plaintiff's sufficiently pleaded cause of action for negligent hiring and retention, Supreme Court granted the motion. This appeal by CDTA and Morin ensued.

         CPLR 3101 (a) mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Here, we take no issue with Supreme Court's conclusion that records of an employee's prior similar acts of negligence are generally discoverable in actions asserting claims for negligent hiring, retention or supervision, as such prior acts may be relevant in establishing whether "the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Stevens v Kellar, 112 A.D.3d 1206, 1209 [2013] [internal quotation marks and citation omitted]; see Spath v Storybook Child Care, Inc., 137 A.D.3d 1736, 1738 [2016]; Huffman v Ellis, 208 A.D.2d 902, 902 [1994]). We part ways, however, on the issue of whether plaintiff in fact pleaded any such cause of action.

         The allegations of negligence set forth in the complaint, as they relate to Morin and CDTA, pertain solely to Morin's operation of the bus on the day of the incident [1]. Specifically, the complaint alleges that, after discharging the infant passengers, Morin "negligently remained in that position for a considerable period of time, causing the bus to obstruct the path of travel for other vehicles in violation of the Vehicle and Traffic Law[]." It further alleges that Morin was "negligent, careless and reckless" in failing to illuminate his hazard lights or any other signal to alert drivers of the presence of the bus during that time. Critically absent from the complaint is any allegation of direct negligence on the part of CDTA. Thus, the complaint "gives not the slightest indication of a theory of liability of negligent supervision[, hiring or retention]" (Darrisaw v Strong Mem. Hosp., 74 A.D.3d 1769, 1770 [2010] [internal quotation marks and citation omitted], affd 16 N.Y.3d 729');">16 N.Y.3d 729 [2011]; accord White v Diocese of Buffalo, N.Y., 138 A.D.3d 1470, 1471 [2016]; Melino v Tougher Heating & Plumbing Co., 23 A.D.2d 616, 616-617 [1965]). Although plaintiff alleged a theory of negligent hiring and retention in his bill of particulars, "[i]t is well settled that a bill of particulars is intended to amplify the pleadings, limit the proof, and prevent surprise at trial... [, and it] may not be used to allege a new theory not originally asserted in the complaint" (Darrisaw v Strong Mem. Hosp., 74 A.D.3d at 1770 [internal quotation marks and citation omitted]; accord Peterson v New York State Elec. & Gas Corp., 115 A.D.3d 1029, 1030 [2014]; see White v Diocese of Buffalo, N.Y., 138 A.D.3d at 1471; Paterra v Arc Dev. LLC, 136 A.D.3d 474, 475 [2016]; Sullivan v St. Francis Hosp., 45 A.D.3d 833, 834 [2007]; Plante v Hinton, 271 A.D.2d 781, 783 [2000]; Lewis v Village of Deposit, 40 A.D.2d 730, 730 [1972], affd 33 N.Y.2d 532');">33 N.Y.2d 532 [1973]; see generally Northway Eng'g v Felix Indus., 77 N.Y.2d 332, 335-336 [1991]; Flores v New York City Hous. Auth., 151 A.D.3d 695, 696 [2017]). Furthermore, the prior accident reports at issue "[are] not otherwise relevant or reasonably calculated to lead to evidence relevant to the issue of [Morin]'s purported negligence" (Jordan v Blue Circle Atl., 296 A.D.2d 752, 753 [2002]; see Cheng Feng Fong v New York City Tr. Auth., 83 A.D.3d 642, 643 [2011]; Gerardi v Nassau/Suffolk Airport Connection, 288 A.D.2d 181, 181 [2001]; Reynolds v Vin Dac Pham, 212 A.D.2d 991, 991 [1995]; Stevens v Metropolitan Suburban Bus Auth., 117 A.D.2d 733, 733 [1986]). Consequently, plaintiff's motion to compel disclosure of the prior accident reports should have been denied.

          Garry, P.J., Devine and Aarons, JJ., concur.

         ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted plaintiff's motion to compel the production of all prior accident reports involving defendant Edward Morin; motion denied to that extent; and, as so modified, affirmed.

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