In Liberty Mut. Ins. Co. v. County of Onondaga, 181 AD2d 1024, 581 N.Y.S.2d 970 [4th Dept 1992]), the plaintiffs were permitted to amend their complaint to add allegations of negligence after a prior appeal and summary judgment determination dismissing their claims against another defendant. (Id. at 1024-1025.) It is not unprecedented to allow a plaintiff to amend after a dismissal on prior appeal and raise a new theory of liability. Liberty Mutual involved a declaratory judgment action brought by an insurance company regarding its duty to defend and indemnify an underlying personal injury action.