Country of Origin: United StatesCourt Name: Supreme Court, Appellate Division, Fourth Department, New YorkPrimary Citation: 138 A.D.3d 1470 (N.Y. App. Div. 2016)Date of Decision: Friday, April 29, 2016Judge Name: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJJurisdiction Level: New YorkAlternate Citation: 2016 WL 1710974 (N.Y. App. Div. 2016)Judges: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJAttorneys: Brown Chiari LLP, Lancaster (Angelo S. Gambino of Counsel), for Plaintiff–Appellant.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Katie Renda of Counsel), for Defendant–Respondent
Docket Num: 15-01147, 350
Summary:
Plaintiff, Rosemary White brought action against the Defendant, Sacred Heart Roman Catholic Church seeking damages for injuries she sustained when she was bitten by a priests’ dog, at premises owned by the church. White brought the action claiming negligent supervision and retention of the priest who owned dog. The church moved to dismiss, and White moved for summary judgment. The New York Supreme Court, Erie County, granted the church's motion for dismissal, and denied White’s motion. White appealed and the New York Supreme Court, Appellate Division, held that the church was not liable for negligent supervision or retention of the priest. The Appellate Division, reasoned that the Supreme Court, Erie County, properly granted the church’s motion to dismiss White’s complaint for failure to state a cause of action. The Court stated that to the extent White alleged a theory of negligent supervision and retention of the priest in her bill of particulars, the “purpose of the bill of particulars is to amplify the pleadings . . . , and [it] may not be used to supply allegations essential to a cause of action that was not pleaded in the complaint.” Therefore, the order from the Supreme Court was affirmed.
Plaintiff commenced this action seeking damages for injuries she sustained when she was bitten by a dog owned by a priest at premises owned by Sacred Heart Roman Catholic Church (Sacred Heart). Supreme Court properly granted defendant's motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7] ). We reject plaintiff's contention that the complaint alleges a theory that defendant was negligent in its retention and/or supervision of the priest assigned to Sacred Heart. Although “[i]t is axiomatic that plaintiff's complaint is to be afforded a liberal construction, that the facts alleged therein are accepted as true, and that plaintiff is to be afforded every possible inference in order to determine whether the facts alleged in the complaint ‘fit within any cognizable theory’ “ (Palladino v. CNY Centro, Inc., 70 A.D.3d 1450, 1451, 895 N.Y.S.2d 614, quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511), we conclude that the complaint herein “ ‘gives not the slightest indication of a theory of liability of negligent supervision [or retention]’ “ (Darrisaw v. Strong Mem. Hosp., 74 A.D.3d 1769, 1770, 902 N.Y.S.2d 286, affd 16 N.Y.3d 729, 917 N.Y.S.2d 95, 942 N.E.2d 305). Furthermore, to the extent that plaintiff alleged such a theory in her bill of particulars, it is well established that the “purpose of the bill of particulars is to amplify the pleadings ..., and [it] ‘may not be used to supply allegations essential to a cause of action that was not pleaded in the complaint’ “ (Paterra v. Arc Dev. LLC, 136 AD3d 474, 475).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
