ROLLINS v. N.Y. CITY BD. OF EDUC

Plaintiff, a school safety officer, had to show a special relationship in order to state a claim for negligent failure to protect her from injury caused by a student ( see Dinardo v City of New York, 13 NY3d 872, 2009 NY Slip Op 08853; Cuffy v City of New York, 69 NY2d 255, 261). Since she raised neither that legal theory nor the factual predicate — an alleged oral promise and policy with the special education dean — in her notice of claim or her complaint, she could not assert that theory or the facts underlying it for the first time in opposition to the motion for summary judgment ( see Brown v New York City Tr. Auth., 172 AD2d 178, 180-181). Furthermore, plaintiff's affidavit in opposition was fundamentally and irreconcilably inconsistent with her deposition testimony ( see Fernandez v VLA Realty, LLC, 45 AD3d 391).