| Alami v 215 E. 68th St., L.P. |
| 2011 NY Slip Op 07591 [88 AD3d 924] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Emilia Alami, Appellant, v 215 East 68th Street, L.P., etal., Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Edward J. O'Gormanof counsel), for respondents 215 East 68th Street, L.P., and Rudin Management Co., Inc. Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Vanessa M. Corchia ofcounsel), for respondents Jeffrey L. Klein, Cara L. Klein, and Claudette Lathom.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from (1) so much of an order of the Supreme Court, Queens County (Lane, J.), enteredDecember 31, 2009, as granted that branch of the cross motion of the defendants Jeffrey L. Klein,Cara L. Klein, and Claudette Lathom which was for summary judgment dismissing the complaintinsofar as asserted against them, and (2) so much of an order of the same court entered January 5,2010, as granted that branch of the motion of the defendants 215 East 68th Street, L.P., andRudin Management Co., Inc., which was for summary judgment dismissing the complaint insofaras asserted against them.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs to thedefendants appearing separately and filing separate briefs.
At the time of the accident that is the subject of this action, the plaintiff was employed by afamily which leased an apartment in a building allegedly owned by the defendant 215 East 68thStreet, L.P. (hereinafter 215), and operated by the defendant Rudin Management Co., Inc.(hereinafter Rudin). She allegedly sustained personal injuries when she slipped and fell onlaundry detergent that had spilled on the floor in the common laundry room located in thebasement of the building. The liquid detergent had been spilled by the two-year-old son of thedefendants Jeffrey L. Klein and Cara L. Klein (hereinafter together the Kleins), who was beingsupervised by his nanny, Claudette Latham, sued herein as Claudette Lathom.
The Supreme Court properly granted that branch of the motion of 215 and Rudin [*2]which was for summary judgment dismissing the complaint insofaras asserted against them. A defendant who moves for summary judgment in a slip-and-fall casehas the initial burden of demonstrating, prima facie, that it neither created the hazardouscondition nor had actual or constructive notice of its existence for a sufficient length of time todiscover and remedy it (see Totten vCumberland Farms, Inc., 57 AD3d 653 [2008]; Cohn v Mayfair Supermarkets,305 AD2d 528 [2003]). "Once a defendant has actual or constructive notice of a dangerouscondition, the defendant has a reasonable time to undertake remedial actions that are reasonableand appropriate under all of the circumstances" (Friedman v Gannett Satellite Info.Network, 302 AD2d 491, 491-492 [2003]; see Stasiak v Sears, Roebuck & Co., 281AD2d 533 [2001]; LoSquadro v Roman Catholic Archdiocese of Brooklyn, 253 AD2d856 [1998]).
Here, the defendants 215 and Rudin submitted evidence establishing that the incidentoccurred approximately 10 minutes after the laundry detergent was spilled. They also submittedevidence that Latham reported the spill to an elevator operator less than five minutes before theplaintiff fell. Under the circumstances of this case, the submissions of the defendants 215 andRudin established, prima facie, that they neither created nor had actual or constructive notice ofthe alleged dangerous condition for a sufficient length of time to discover and remedy it (see Sloane v Costco Wholesale Corp.,49 AD3d 522, 523 [2008]; Ulu vITT Sheraton Corp., 27 AD3d 554, 554-555 [2006]; Tkach v Golub Corp., 265AD2d 632, 633 [1999]; Maiorano v Price Chopper Operating Co., 221 AD2d 698,698-699 [1995]). In opposition, the plaintiff failed to raise a triable issue of fact.
The Supreme Court also properly granted that branch of the motion which was for summaryjudgment dismissing the complaint insofar as asserted against the Kleins and Latham. In thecomplaint, the plaintiff alleged that her injuries were caused by the negligence of the Kleins andLatham, their agents, servants, and/or employees "in their ownership, operation, maintenance,management, and control" of the subject premises. Since the Kleins and Latham did not own,maintain, operate, or control the premises, they owed no duty of care to the plaintiff to maintainthe premises in a safe condition (seeSegura v City of New York, 70 AD3d 670 [2010]).
It was improper for the plaintiff to assert, for the first time in her bill of particulars, a cause ofaction alleging negligent supervision of the Kleins' son. Although a bill of particulars may beused to amplify the allegations in a complaint (see Nader v General Motors Corp., 25NY2d 560, 565 [1970]), and considered in determining the "sufficiency of a pleaded cause ofaction" (Siegel, NY Prac § 238, at 401 [4th ed]), a bill of particulars may not be used tosupply allegations essential to a cause of action that was not pleaded in the complaint (see Sullivan v St. Francis Hosp., 45AD3d 833 [2007]; Castleton vBroadway Mall Props., Inc., 41 AD3d 410, 411 [2007]; B. & F. Leasing Co. vAshton Cos., 42 AD2d 652, 653 [1973]; Melino v Tougher Heating & Plumbing Co.,23 AD2d 616, 617 [1965]). Moreover, the Kleins and Latham established, prima facie, that anuncapped bottle of detergent was not a dangerous instrument entrusted to a minor such thatliability could be imposed upon them for negligent supervision, and they further established thatLatham owed no duty of care to the plaintiff (see Simcha v Simcha, 292 AD2d 591[2002]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue offact. Dillon, J.P., Belen, Roman and Miller, JJ., concur.