Appellate Division, Fourth Department · October 9, 2026 · 2026 NY Slip Op 05870
Edworthy v Village of Whitesboro
Read the official decision: 2026 NY Slip Op 05870
Holding The court affirmed the dismissal of the complaint against the individual defendant because the plaintiff improperly raised a public nuisance theory for the first time in opposition to a summary judgment motion. The court held that a bill of particulars cannot be used to allege a new theory of liability that was not originally asserted in the complaint.
The court’s words
a bill of particulars may not be used to allege a new theory not originally asserted in the complaint
2026 NY Slip Op 05870, at the official text
court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint
2026 NY Slip Op 05870, at the official text
examine whether the allegedly new theory was sufficiently pleaded to avoid surprise and prejudice to defendants
2026 NY Slip Op 05870, at the official text
| Court | Appellate Division, Fourth Department |
|---|---|
| Decided | October 9, 2026 |
| Citation | 2026 NY Slip Op 05870 |
| Area of law | Personal Injury and Negligence · Civil Procedure |
| Week | Week ending October 10, 2026 |
| Official text | Official decision: 2026 NY Slip Op 05870 |
| Publication status | Slip opinions are uncorrected and subject to revision before publication in the Official Reports. |
| Source feed | New York slip opinion page |
| Law Watch record id | 1098 |
Recommended citation
ESQ HQ, New York Law Watch, Edworthy v Village of Whitesboro, 2026 NY Slip Op 05870 (Appellate Division, Fourth Department, October 9, 2026), https://esqhq.com/decisions/2026-ny-slip-op-05870/
How this record was made
Holding drafted by Law Watch’s in-house model, graded by three reviewers; every quotation verified word for word against the official text.
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