Hernandez v. Callen

• Decision Date: 29 December 2015
• Parties: Pedro HERNANDEZ, et al., Plaintiffs–Appellants, v. Robinson CALLEN, etc., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 654

21 N.Y.S.3d 621 (Mem)

Pedro HERNANDEZ, et al., Plaintiffs–Appellants,

v.Robinson CALLEN, etc., et al., Defendants–Respondents.

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

Dec. 29, 2015.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.

Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered July 25, 2014, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiffs' cross motion to amend and/or supplement the bill of particulars, unanimously affirmed, without costs.

Dismissal of the complaint was warranted in this action where plaintiff Pedro Hernandez alleges that he was injured when he fell while ascending a two-step configuration that led from a corridor to restrooms in premises owned or operated by the various defendants. The code provisions relied upon by plaintiff do not require handrails or uniform riser heights on the stairs on which plaintiff fell, as they are not part of an "interior stair" (see Administrative Code of City of N.Y. § 27–232; Remes v. 513 W. 26th Realty, LLC, 73 A.D.3d 665, 903 N.Y.S.2d 8 [1st Dept.2010] ). Furthermore, the assertion of plaintiffs' expert, that good and commonly accepted safe industry practice required handrails and uniform riser heights on the subject steps, is conclusory, as it was not supported by reference to specific, applicable safety standards or practices (see Jones v. City of New York, 32 A.D.3d 706, 707, 821 N.Y.S.2d 548 [1st Dept.2006] ; Contreras v. Zabar's, 293 A.D.2d 362, 740 N.Y.S.2d 203 [1st Dept.2002] ).

Plaintiffs' cross motion to amend and/or supplement the bill of particulars was properly denied since the code provisions plaintiffs sought to assert are inapplicable (see e.g. Kittay v. Moskowitz, 95 A.D.3d 451, 944 N.Y.S.2d 497 [1st Dept.2012], lv. denied 20 N.Y.3d 859, 2013 WL 518556 [2013] ).

MAZZARELLI, J.P., SWEENY, MANZANET–DANIELS, GISCHE, JJ., concur.