Rothstein v. City University of New York
| Decision Date | 01 June 1993 |
| Docket Number | No. 76107,76107 |
| Citation | 599 N.Y.S.2d 39,194 A.D.2d 533 |
| Parties | , 83 Ed. Law Rep. 1101 Lloyd ROTHSTEIN, et al., Respondents, v. CITY UNIVERSITY OF NEW YORK, Appellant. Claim |
| Court | New York Supreme Court — Appellate Division |
Robert Abrams, Atty. Gen., New York City (Robert S. Hammer, of counsel), for appellant.
Alan C. Glassman, Brooklyn, (Michael A. Kanowitz, of counsel), for respondents.
Before BRACKEN, J.P., and O'BRIEN, RITTER and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
In a claim to recover damages for personal injuries, etc., the defendant appeals from an interlocutory judgment of the Court of Claims (Weisberg, J.), entered November 7, 1990, which, after a nonjury trial, found it 80% at fault in the happening of the accident. 148 Misc.2d 911, 562 N.Y.S.2d 340.
ORDERED that the interlocutory judgment is affirmed, with costs.
The claimants brought this claim against the defendant, the City University of New York, to recover damages for personal injuries suffered by the claimant Lloyd Rothstein, on the evening of March 7, 1987, when he fell down the steps in the Walt Whitman Theater at Brooklyn College while attending a performance there.
After the liability portion of the bifurcated bench trial had been completed, the court granted the claimants' motion to conform the pleadings to the proof, pursuant to CPLR 3025(c). In subsequently amending the pleadings, the court sua sponte took judicial notice of New York City Building Code § 27-532(a)(7)(g) which required that each step in an aisle (in a place of assembly such as this theater [NY City Building Code § 27-232] be clearly marked with a permanent contrasting color stripe and be provided with a step light. Although the claimants had not cited any statute, ordinance, rule, or regulation in the claim or the bill of particulars, they had reserved the right to do so.
The court found that the defendant had violated the aforementioned provision of the Code and, in doing so, was 80% at fault in the happening of the accident. The claimant Lloyd Rothstein was found to be 20% at fault in the happening of the accident. The defendant appeals, arguing that the court erred in applying the Code to this "trip and fall" accident and that the verdict of 80% fault on the defendant's part was against the weight of the evidence.
The court properly granted the claimants' motion pursuant to CPLR 3025(c) to amend the pleadings to conform to the evidence adduced at trial. Pleadings may be freely amended at the court's discretion "during or even after trial", so long as no undue prejudice results (see, Dittmar Explosives, Inc. v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 285 N.Y.S.2d 55, 231 N.E.2d 756). In deciding whether to grant the motion, the courts consider such factors as the delay in moving, surprise, and significant prejudice, the latter being the foremost consideration (see, Murray...
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