Cintron v. N.Y. City Transit Auth.

• Decision Date: 05 October 2010
• Citation: 77 A.D.3d 410,908 N.Y.S.2d 190
• Parties: Edelfin CINTRON, et al., Plaintiffs-Appellants/Respondents, v. The NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent, EOP Worldwide Plaza, LLC, et al., Defendants-Respondents/Appellants, Temco Service Industries, Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 190

77 A.D.3d 410

Edelfin CINTRON, et al., Plaintiffs-Appellants/Respondents,

v. The NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent,EOP Worldwide Plaza, LLC, et al., Defendants-Respondents/Appellants,Temco Service Industries, Inc., Defendant.

Supreme Court, Appellate Division, First Department, New York.

Oct. 5, 2010.

Stuart R. Goldstein, Ridgewood, for appellants/respondents.

Curan, Ahlers, Fiden & Norris, LLP, White Plains (Charles B. Norris of counsel), for respondents/appellants.

Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondent.

SAXE, J.P., NARDELLI, McGUIRE, FREEDMAN, ABDUS-SALAAM, JJ.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered January 12, 2009, which, in an action for personal injuries sustained in a slip and fall down stairs, denied plaintiffs' motion for 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 appealed from as limited by the briefs, denied the cross motion of defendants EOP Worldwide Plaza, LLC and Equity Office Properties Management Corp. (collectively EOP) for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the cross motion granted. The Clerk is directed to enter judgment accordingly.

The motion court properly exercised its discretion in denying the motion to amend the bill of particulars, where the delay in making the motion was unreasonable given that it was made four months following 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 A.D.2d 430, 625 N.Y.S.2d 194 [1995] ). The claim of plaintiffs' counsel that he relied on his client's statement that the subject stairs were being renovated, and thus did not 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 didnot merely embellish their initial claims, but constituted substantivechanges and additions to the theory of the case, which would require defendants to reorient their defense strategy to focus on these violations ( see Markarian v. Hundert, 262 A.D.2d 369, 691 N.Y.S.2d 165 [1999] ).

The record demonstrates that dismissal of the complaint as against EOP is warranted, since EOP established its prima facie entitlement to judgment as a matter of law and plaintiffs' opposition failed to raise a triable issue of fact ( see e.g. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Regarding the existence of a dangerous condition, EOP demonstrated that plaintiffs made only unsupported allegations about the stairs, never responded to the demand for expert witness disclosure, and had not provided any other proof regarding a defect in the stairs. In response, plaintiffs, for the first time, produced an expert affidavit setting forth findings regarding the stairs. However, these findings were not probative of the condition of the stairs at the time of the accident since the expert did not inspect the stairs until four years after...