## Facts

- The City of New York contracted with Cayuga Construction Corporation to perform Second Avenue subway construction that included blasting.
- Blasting occurred from October 1974 through the end of 1975 near premises at 2250 Second Avenue in Manhattan.
- The building owner alleged structural damage to the property attributable to defendants’ blasting.
- Tenant-plaintiffs operating a meat market alleged loss of business, interference with use and enjoyment of the premises, and physical and mental distress.
- Plaintiffs pleaded two theories for each plaintiff group: (1) absolute liability for blasting-related harm and (2) negligence.
- In response to a demand for a bill of particulars on causation, plaintiffs largely repeated their complaint and did not specify negligence theories beyond negligent blasting.
- At trial, defendants focused on contesting causation as a defense to both absolute-liability and negligence claims.
- Over defendants’ objection, the trial court charged the jury that negligence could be based on pre-blasting investigation and precautions, rather than negligence in the blasting operations as pleaded.
- The jury returned a verdict for plaintiffs; judgment awarded $40,000 to the owner group and $40,000 to the tenant group, plus interest.

## Issues

1. Whether the trial court erred by charging a negligence theory based on pre-blasting investigation and precautions when the complaint and bill of particulars alleged only negligence in the blasting operations.
2. Whether plaintiffs could recover on a negligence theory materially different from, or broader than, the negligence theory confined by the pleadings and bill of particulars.

## Decision

- The Appellate Division, First Department reversed the judgment on the law and vacated it.
- The court dismissed the second and fourth causes of action (the negligence claims of the owner and tenants).
- The court remanded for a new trial limited to the first and third causes of action (the absolute-liability blasting claims).

## Legal Principles

- Pleadings and a bill of particulars define and limit the issues and proof; an opposing party may rely on them to frame trial preparation and strategy.
- A jury charge that submits a materially different negligence theory than that pleaded and particularized constitutes a prejudicial variance and reversible legal error.
- Where negligence is pleaded as negligence “when blasting,” a charge permitting liability for pre-blasting investigation or planning is improper absent pleading and particularization of that theory.
- Dismissal of negligence causes of action may be warranted when the only negligence theory submitted to the jury was outside the pleaded case.
- Strict (absolute) liability for blasting is analytically separate from negligence; causation and damages remain issues for retrial on properly pleaded strict-liability claims.

## Conclusion

The appellate court set aside the plaintiffs’ negligence verdict because the trial court expanded negligence beyond the complaint and bill of particulars by charging pre-blasting misconduct; it dismissed the negligence counts and ordered a new trial solely on the absolute-liability blasting claims.


Iannone v. Cayuga Constr. Corp., 66 A.D.2d 745, 411 N.Y.S.2d 599 (App. Div. 1st Dep’t 1978)