Opinion
No. 570337/10.
01-27-2017
Luisa ESPOSITO, Plaintiff–Appellant, v. Allen H. ISAAC, individually and as a partner of Gladstein & Isaac, Harvey Gladstein, individually and as a partner of Gladstein & Isaac, Gladstein & Isaac, Arthur Pollack, individually and as a partner of Pollack, Pollack, Isaac & DeCicco, Conrad Pollack, individually and as a partner of Pollack, Pollack, Isaac & DeCicco, Brian J. Isaac, Pollack, Pollack, Isaac & DeCicco, and Pollack, Pollack, Isaac & DeCicco, Defendants–Respondents.
Order (David B. Cohen, J.), dated August 11, 2015, affirmed, with $10 costs. Appeal from order (David B. Cohen, J.), dated January 11, 2016, dismissed, without costs, as nonappealable.
This now 10–year–old case arises from alleged acts of sexual misconduct by an attorney during his representation of plaintiff-client in a personal injury action. On this appeal from an order dismissing the remaining causes of action against defendant law firm on the ground that the firm was not vicariously liable for acts committed for personal motives of the offending attorney and not in furtherance of the firm's business (see N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251–252 [2002] ), we decline to entertain plaintiff's attempt to assert for the first time the unpleaded claim that defendant law firm is a "public accommodation" and therefore liable under the New York State and City Human Rights Laws (see Jaroslawicz v. Cohen, 12 A.D.3d 160 [2004] ). Plaintiff never pleaded any claims under the Human Rights Laws, never alleged that the law firm is a "public accommodation," and did not move to amend the complaint to assert such claims (see Meola v. Metro Demolition Contr. Corp., 309 A.D.2d 653 [2003], lv denied 2 N.Y.3d 706 [2004] ). "Liberality in pleading is stretched too far when it is deemed permissible to plead one claim and then substitute for it an entirely different one" (New York Auction Co. Div. of Std. Prudential Corp. v. Belt, 53 A.D.2d 540 [1976] [internal quotation marks omitted], appeal dismissed 40 N.Y.2d 1079 [1976] ; see Wiacek v. 3M Co., 124 A.D.3d 421 [2015] ; Poley v. Sony Music Entertainment, 222 A.D.2d 308 [1995] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.