In Melendez v. NYCHA, 294 AD2d 243, 741 N.Y.S.2d 866 [1st Dept 2002], the First Department found that allegations in the bill of particulars referring to negligent hiring was not anew theory of liability from what was asserted in the notice of claim.

The NYCHA brief submitted to the First Department indicates that the notice of claim alleged that defective a smoke detector/smoke alarm failed to activate and alert the plaintiff to the fire, and, that NYCHA was negligent in the ownership, operation, maintenance, management, care and control of the smoke alarm/detector.

Accordingly, the allegation in the notice of claim that the defective smoke detector/alarm was not properly maintained also fairly implied that the allegation that NYCHA was negligent in hiring incompetent employees.

Additionally the First Department found that the allegation in the bill of particulars, that NYCHA failed to give a sign or warn of the defective condition, was also fairly implied.