DAVID SCHONBRUN, Individually and as Parent and Guardian of ANDREW SCHONBRUN et al., Infants, Respondent,
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.
Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of
counsel), for respondent.
Before: Garry, P.J., Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
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.
22, 2015, plaintiff's infant children were struck by a
vehicle after they disembarked from a bus owned by defendant
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.
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 
[internal quotation marks and citation omitted]; see
Spath v Storybook Child Care, Inc., 137 A.D.3d 1736,
1738 ; Huffman v Ellis, 208 A.D.2d 902, 902
). We part ways, however, on the issue of whether
plaintiff in fact pleaded any such cause of action.
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
. 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  [internal quotation marks and
citation omitted], affd 16 N.Y.3d 729');">16 N.Y.3d 729 ;
accord White v Diocese of Buffalo, N.Y., 138 A.D.3d
1470, 1471 ; Melino v Tougher Heating &
Plumbing Co., 23 A.D.2d 616, 616-617 ). 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 ; 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 ;
Sullivan v St. Francis Hosp., 45 A.D.3d 833, 834
; Plante v Hinton, 271 A.D.2d 781, 783 ;
Lewis v Village of Deposit, 40 A.D.2d 730, 730
, affd 33 N.Y.2d 532');">33 N.Y.2d 532 ; see generally
Northway Eng'g v Felix Indus., 77 N.Y.2d 332,
335-336 ; Flores v New York City Hous. Auth.,
151 A.D.3d 695, 696 ). 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 ; see
Cheng Feng Fong v New York City Tr. Auth., 83 A.D.3d
642, 643 ; Gerardi v Nassau/Suffolk Airport
Connection, 288 A.D.2d 181, 181 ; Reynolds v
Vin Dac Pham, 212 A.D.2d 991, 991 ; Stevens v
Metropolitan Suburban Bus Auth., 117 A.D.2d 733, 733
). Consequently, plaintiff's motion to compel
disclosure of the prior accident reports should have been
P.J., Devine and Aarons, JJ., concur.
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.