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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
CourtAppellate Division, Fourth Department
DecidedOctober 9, 2026
Citation2026 NY Slip Op 05870
Area of lawPersonal Injury and Negligence · Civil Procedure
WeekWeek ending October 10, 2026
Official textOfficial decision: 2026 NY Slip Op 05870
Publication statusSlip opinions are uncorrected and subject to revision before publication in the Official Reports.
Source feedNew York slip opinion page
Law Watch record id1098

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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Published October 9, 2026. Updated October 9, 2026.