Court Holds That Questions During Deposition Were Sufficient To Give Notice Of Theory Of Liability

In Valenti v. Camins, the First Department held that a defendant on summary judgment must oppose even a vague, undefined theory of liability in a bill of particulars so long as the theory was clarified or amplified by plaintiff’s deposition questions.  In this medical malpractice action arising out of the plaintiff’s spinal surgery, the bill of particulars alleged only “improper placement of orthopedic hardware.”  In response to defendants' motion for summary judgment, the plaintiff attached an affirmation alleging that defendants improperly placed a screw at C7 and not C6.  On reply, defendants submitted an affidavit from a radiologist opposing that view.

The First Department held that the trial court should not have considered the radiologist's affirmation on reply because the defendants had notice of the argument and should have attached it earlier to meet its prima facie burden.  In holding that the parties were on notice of the plaintiff’s claim, the majority relied on various depositions where plaintiff’s attorney asked questions about documents that suggested a spinal screw might have been placed at C7 and not C6.  The dissent argued that the defendants could have believed that the claim was a non-issue because when the questions were posed, the witnesses testified that it was simply a scrivener's mistake and that the records should say C6.