King v. Marwest, LLC

• Citation: 143 N.Y.S.3d 673,192 A.D.3d 874
• Decision Date: 17 March 2021
• Docket Number: Index No. 1364/15,2018–01726
• Parties: Lisa KING, respondent, v. MARWEST, LLC, appellant.
• Court: New York Supreme Court Appellate Division

192 A.D.3d 874

143 N.Y.S.3d 673

Lisa KING, respondent,

v.MARWEST, LLC, appellant.

2018–01726

Index No. 1364/15

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

Submitted—February 18, 2021

March 17, 2021

Marshall Dennehey Warner Coleman & Goggin, P.C., Rye Brook, N.Y. (Jennifer M. Meyers of counsel), for appellant.

Sobo & Sobo, LLP, Middletown, N.Y. (Stephen J. Cole–Hatchard and Mark Cambareri of counsel), for respondent.

WILLIAM F. MASTRO, A.P.J., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Dutchess County (Christi J. Acker, J.), dated January 16, 2018. The order, in effect, granted the plaintiff's cross motion for leave to amend the bill of particulars, and denied, with leave to resubmit, the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the defendant's motion for summary judgment dismissing the complaint is granted, and the plaintiff's cross motion for leave to amend the bill of particulars is denied.

The plaintiff commenced this action in 2015 to recover damages for personal injuries she allegedly sustained in 2012. She alleged that while she was working at a retail store, a front entry door closed quickly on her hand while she was moving a cart with merchandise through the doorway. The property where the accident occurred was owned by the defendant and leased by the plaintiff's employer pursuant to a written lease. The lease reflected that the defendant and the lessee each had certain responsibilities with respect to the maintenance and repair of certain parts of the property. In the complaint and the bill of particulars, the plaintiff alleged that the accident occurred when the door closed too quickly, and that the defendant was negligent in permitting the door to be maintained in such a condition.

After the plaintiff filed a note of issue and certificate of readiness in 2017, the defendant moved for summary judgment dismissing the complaint, contending, inter alia, that it could not be held liable for the alleged defect in the door because the defendant was an out-of-possession landlord with no duty to repair the door. The plaintiff opposed the motion, and cross-moved for leave to amend the bill of particulars, alleging for the first time that her injury also was caused by a defect in the concrete floor of the doorway threshold, which caused the center wheel of the cart that she was pulling to become caught, and that the alleged defect in the floor violated Building Code of New York State former § 1008.1.6 (2010).

In an order dated January 16, 2018, the Supreme Court, in effect, granted the plaintiff's cross motion for leave to amend the bill of particulars, set a schedule for completion of additional discovery, and denied the defendant's motion for summary judgment dismissing the complaint "without prejudice to resubmit." The defendant appeals.

The Supreme Court improvidently exercised its discretion in granting the plaintiff's cross motion for leave to amend the bill of particulars to allege a defect in the doorway floor. "While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise" ( Kirk v. Nahon, 160 A.D.3d 823, 824, 75 N.Y.S.3d 237 ; see CPLR 3025[b] ), "once discovery has been completed and the case has been certified as ready for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances" ( Schreiber–Cross v. State of New York, 57 A.D.3d 881, 884, 870 N.Y.S.2d 438 [internal quotation marks omitted]; see Anonymous v. Gleason, 175 A.D.3d 614, 617–618, 106 N.Y.S.3d 353 ). In such a case, leave may properly be granted "where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant" ( Ortiz v. Chendrasekhar, 154 A.D.3d 867, 869, 63 N.Y.S.3d 403 [internal quotation marks omitted]). However "where a motion for leave to amend a bill of particulars alleging new theories of liability not raised in the complaint or the original bill is made on the eve of trial, leave of court is required, and judicial discretion should be exercised sparingly, and should be discreet, circumspect, prudent, and cautious" ( Navarette v. Alexiades, 50 A.D.3d 869, 870–871, 855 N.Y.S.2d 260 ). "In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom" ( Moore v. Franklin Hosp. Med. Center–N. Shore–Long Is. Jewish Health Sys., 155 A.D.3d 945, 946, 63 N.Y.S.3d 884 ).

Contrary to the plaintiff's contention, the proposed amendment to the bill of particulars raised an entirely new theory of liability well after discovery had been completed, and was advanced only in response to the defendant's motion for summary judgment. Moreover, the plaintiff failed to proffer a reasonable excuse for her delay in seeking the amendment (see Kirk v. Nahon, 160 A.D.3d at 824, 75 N.Y.S.3d 237 ; Smith v. Hercules Constr. Corp., 274 A.D.2d 467, 468, 711 N.Y.S.2d 453 ), and the proposed amendment was prejudicial to the defendant (see Anonymous v....