| Cintron v New York City Tr. Auth. |
| 2010 NY Slip Op 07078 [77 AD3d 410] |
| October 5, 2010 |
| Appellate Division, First Department |
| Edelfin Cintron et al., Appellants-Respondents, v New YorkCity Transit Authority, Respondent, and EOP Worldwide Plaza, LLC, et al., Respondents-Appellants,et al., Defendant. |
—[*1] Curan, Ahlers, Fiden & Norris, LLP, White Plains (Charles B. Norris of counsel), forrespondents/appellants. Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondent.
Order, Supreme Court, New York County (Donna Marie Mills, J.), entered January 12, 2009,which, in an action for personal injuries sustained in a slip and fall down stairs, denied plaintiffs' motionfor leave to amend the bill of particulars, unanimously affirmed, without costs. Order, Supreme Court,New York County (Harold B. Beeler, J.), entered February 11, 2009, which, to the extent appealedfrom as limited by the briefs, denied the cross motion of defendants EOP Worldwide Plaza, LLC andEquity Office Properties Management Corp. (collectively EOP) for summary judgment dismissing thecomplaint as against them, unanimously reversed, on the law, without costs, and the cross motiongranted. The Clerk is directed to enter judgment accordingly.
The motion court properly exercised its discretion in denying the motion to amend the bill ofparticulars, where the delay in making the motion was unreasonable given that it was made four monthsfollowing the filing of the note of issue and four years after the commencement of the action (see e.g.Keene v Columbia-Presbyterian Med. Ctr., 214 AD2d 430 [1995]). The claim of plaintiffs'counsel that he relied on his client's statement that the subject stairs were being renovated, and thus didnot inspect them until four years after the accident, does not constitute a reasonable excuse.Furthermore, the code violations plaintiffs sought to add to the bill of particulars did not merelyembellish their initial claims, but constituted substantive changes and additions to the theory of the case,which would require defendants to reorient their defense strategy to focus on these violations (seeMarkarian v Hundert, 262 AD2d 369 [1999]).
The record demonstrates that dismissal of the complaint as against EOP is warranted, [*2]since EOP established its prima facie entitlement to judgment as a matterof law and plaintiffs' opposition failed to raise a triable issue of fact (see e.g. Alvarez v ProspectHosp., 68 NY2d 320, 325 [1986]). Regarding the existence of a dangerous condition, EOPdemonstrated that plaintiffs made only unsupported allegations about the stairs, never responded to thedemand for expert witness disclosure, and had not provided any other proof regarding a defect in thestairs. In response, plaintiffs, for the first time, produced an expert affidavit setting forth findingsregarding the stairs. However, these findings were not probative of the condition of the stairs at the timeof the accident since the expert did not inspect the stairs until four years after the accident (see Garcia v The Jesuits of Fordham, 6AD3d 163, 166 [2004]; Kruimer v National Cleaning Contrs., 256 AD2d 1 [1998]). Theexpert also improperly relied on the various code violations which had not been pleaded, apparently onthe assumption that plaintiffs would be permitted to amend the bill of particulars.
EOP also demonstrated that they neither created nor had notice of any defect in the staircase.There was no evidence of any complaints received or of any violations or citations issued regarding thestaircase. Furthermore, EOP's witness testified that he informally inspected the stairs on a weekly basisand did so formally once a month, and he never noticed any defect or dangerous condition (seeGordon v American Museum of Natural History, 67 NY2d 836 [1986]). Plaintiffs' oppositionfailed to raise a triable issue as the injured plaintiff testified that he never used the staircase before theaccident and could not state how long the alleged condition existed. Nor did plaintiffs produce anyother evidence indicating how long the condition existed (see Montero v Southern Blvd. Ltd. Partnership, 73 AD3d 568 [2010]).
The record further demonstrates that the complaint as against EOP should have been dismissedbecause the alleged condition of the stair was too trivial to be actionable. The injured plaintiff claimedonly that the stair was slippery and appeared a little bit worn, while denying that any substance on thestairs caused him to fall, and the photographs of the stairs at the time of the accident do not reveal atrap or major defect (see Sulca v Barry HersRealty, Inc., 29 AD3d 779 [2006]; Santiago v United Artists Communications, 263AD2d 407, 408 [1999]). Concur—Saxe, J.P., Nardelli, McGuire, Freedman andAbdus-Salaam, JJ.