Jean-Baptiste v. 153 Manhattan Ave. Hous. Dev. Fund Corp.

• Decision Date: 20 January 2015
• Citation: 2 N.Y.S.3d 441,124 A.D.3d 476,2015 N.Y. Slip Op. 00463
• Parties: Francoise JEAN–BAPTISTE, Plaintiff–Appellant, v. 153 MANHATTAN AVENUE HOUSING DEVELOPMENT FUND CORP., Defendant–Respondent. [And a Third–Party Action].
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 476

2 N.Y.S.3d 441

2015 N.Y. Slip Op. 00463

Francoise JEAN–BAPTISTE, Plaintiff–Appellant,

v. 153 MANHATTAN AVENUE HOUSING DEVELOPMENT FUND CORP., Defendant–Respondent.[And a Third–Party Action].

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

Jan. 20, 2015

Affirmed. Pollack Pollack Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), for appellant.

Barry, McTiernan & Moore LLC, New York (David H. Schultz of counsel), for respondent.

TOM, J.P., RENWICK, ANDRIAS, DeGRASSE, KAPNICK, JJ.

Order, Supreme Court, New York County (Paul Wooten, J.), entered July 17, 2012, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established prima facie entitlement to summary judgment by demonstrating its status as an out-of-possession landlord under the terms of the lease ( see 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]; Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 906 N.Y.S.2d 528 [1st Dept.2010] ). Plaintiff's attempt, by way of opposition, to subject defendant to liability on the ground that it retained the right to reenter and make repairs to the premises ( Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 565–566, 516 N.Y.S.2d 451, 509 N.E.2d 51 [1987] ), is both procedurally improper and substantively without merit. The complaint, as supplemented by her bill of particulars dated January 22, 2007, alleged only generic Labor Law and OSHA violations ( see e.g. Cintron v. New York City Tr. Auth., 77 A.D.3d 410, 908 N.Y.S.2d 190 [1st Dept.2010] ). The new allegations, asserted nearly five years later—six months after the filing of plaintiff's note of issue—that defendant violated provisions of the Building Code (Administrative Code § 27–375[c], [d], [e], and [f] ) constitutes a substantive change to her theory of the case. In the absence of a motion for leave to amend the pleadings (CPLR 3025[b] ), it was properly rejected.

Even if plaintiff's disregard for procedure could be ignored, an application to amend a pleading requires the movant to set forth a viable cause of action, without which leave must be denied ( see Thomas Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 170, 544 N.Y.S.2d 580, 542 N.E.2d 1097 [1989] ). The specific section of the Building Code plaintiff alleges to have been violated (§ 27–375) does not apply to stairs leading from the ground floor to the basement of a building ( Cusumano v. City of New York, 15 N.Y.3d 319, 324, 910 N.Y.S.2d 410, 937 N.E.2d 74 [2010] ). Thus, plaintiff has failed to demonstrate “that the purported hazard constituted a structural or design defect that violated a specific statutory provision” to hold the landlord answerable in damages for her injuries ( Boateng v. Four Plus Corp., 22 A.D.3d 323, 324, 802 N.Y.S.2d 418 [1st Dept.2005] ). Furthermore, plaintiff has no recollection of events surrounding the accident and, unlike the cases she...