| Hughes v Concourse Residence Corp. |
| 2009 NY Slip Op 03672 [62 AD3d 463] |
| May 7, 2009 |
| Appellate Division, First Department |
| Alania Hughes, an Infant, by Her Mother and Natural Guardian,Lotrina Kinsey, Appellant, v Concourse Residence Corp. et al.,Respondents. |
—[*1] Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains (Erin M. Cola of counsel), forConcourse Residence Corp. and Webster Tremont Equities Corp., respondents. Carol R. Finocchio, New York (Marie R. Hodukavich of counsel), for Home Life Services,respondent.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered January 30,2008, which granted defendants' motion and cross motion for summary judgment dismissing thecomplaint, and denied plaintiff's cross motion to amend the verified bill of particulars,unanimously reversed, on the law, without costs, defendants' motion and cross motions deniedand plaintiff's cross motion granted.
On March 10, 2002, the infant plaintiff, who resided with her family in a single room in ahomeless shelter owned and operated by defendants, was burned when she fell onto an exposedpipe, carrying either steam or hot water, which had a portion of its insulation missing.
The court erred in denying plaintiff's motion to amend her bill of particulars to add aviolation of Administrative Code of the City of New York § 27-809, which requires thatpipes carrying steam or hot water at temperatures exceeding 165 degrees Fahrenheit be insulated(see Isaacs v West 34th Apts.Corp., 36 AD3d 414, 415 [2007], lv denied 8 NY3d 810 [2007]). Theamendment will not prejudice defendants since it does not raise any new factual allegations ortheories of liability (see Zuluaga vP.P.C. Constr., LLC, 45 AD3d 479 [2007]; Walker v Metro-North Commuter R.R., 11 AD3d 339 [2004]).
In granting summary judgment, the motion court relied on Rivera v Nelson Realty, LLC (7 NY3d530 [2006]) and Rodriguez v Cityof New York (20 AD3d 327 [2005], appeal withdrawn 7 NY3d 751 [2006]),which held that the failure to provide radiator covers is not actionable. The court's reliance wasmisplaced, since this case involves an injury caused by an uninsulated pipe, regulated byAdministrative Code § 27-809, not an allegedly unsafe radiator cover, which is not soregulated (see Isaacs at 415-416).
Defendants have failed to establish that Administrative Code § 27-809 does not applyto this case. Significantly, Concourse's witness testified that in 1996 or 1997 all of the radiatorsin [*2]the building were changed and the building was required atthat time to insulate all of the pipes.
Nor have defendants established a lack of notice. While their witnesses stated that they hadno personal knowledge of the exposed pipe and agreed that the rooms were routinely checked byHome Life—the inspection included a check of the pipes to make sure they wereinsulated—plaintiff's file was devoid of routinely maintained home assessment formsand/or room inspection reports as well as an incident report. Furthermore, plaintiff testified thatshe had complained about the condition of the pipe and that her room had never been inspected(see Moore v 793-797 Garden St. Hous.Dev. Corp., 46 AD3d 382 [2007]).
We have considered defendants' remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Sweeny, Nardelli, Freedman and Richter, JJ.