| Miki v 335 Madison Ave., LLC |
| 2012 NY Slip Op 01553 [93 AD3d 407] |
| March 1, 2012 |
| Appellate Division, First Department |
| Patrice Miki, Appellant, v 335 Madison Avenue, LLC, etal., Respondents. |
—[*1] James J. Toomey, New York (Evy L. Kazansky of counsel), for respondents.
Order, Supreme Court, New York County (Martin Shulman, J.), entered January 20, 2011,which granted defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
In this personal injury action, plaintiff allegedly tripped and fell on a bent "lip" on the edge ofthe metal molding surrounding an access door, which was located on the floor of aheavily-trafficked room on the mezzanine level of premises owned by defendant 335 Madisonand managed by defendant Milstein. Defendant General Electric leased the mezzanine level ofthe premises and subleased it to plaintiff's employer, nonparty American Independence.
The motion court properly dismissed plaintiff's claim that the access door violatedAdministrative Code of the City of New York § 28-301.1, since she failed to allege thestatute in, or seek leave to add it to, her bill of particulars (see generally Reilly v NewireenAssoc., 303 AD2d 214, 217-218 [2003], lv denied 100 NY2d 508 [2003]).Moreover, the claim lacks merit, as the statute merely imposes a general duty on owners tomaintain their premises, and does not specifically address the alleged structural defect at issue(see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559 [1987]; see also Maksuti v Best Italian Pizza,27 AD3d 300 [2006], lv denied 7 NY3d 715 [2006]; cf. Cusumano v City of New York, 15NY3d 319, 327-328 [2010, Lippman, Ch. J., concurring]).
Defendants made a prima facie showing of entitlement to judgment as a matter of law withrespect to plaintiff's common-law negligence claim by submitting evidence that they did notcreate or have notice of the alleged dangerous condition. In response, plaintiff failed to raise atriable issue of fact. Indeed, the record shows that plaintiff and her coworkers had entered andexited the subject room several times a day, over a period of years, and there had been nocomplaints or incidents related to the metal molding or bent lip before the accident (seeGordon v [*2]American Museum of Natural History, 67NY2d 836, 837-838 [1986]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Gonzalez, P.J., Sweeny, Moskowitz, Renwick and Richter, JJ. [Prior CaseHistory: 30 Misc 3d 1214(A), 2011 NY Slip Op 50065(U).]