Opinion
October 13, 1998
Appeal from the Supreme Court, New York County (Diane Lebedeff, J.).
Under the unique circumstances presented, the court's vacatur of its prior judgment was a proper exercise of its inherent power ( see, Ladd v. Stevenson, 112 N.Y. 325, 331-332). Leave to amend the bill of particulars was appropriately granted by the court sua sponte ( see, e.g., Zinn v. Long Is. Jewish Med. Ctr., 101 A.D.2d 860, 861), since it had inherent power to permit the correction of pretrial disclosure ( see, e.g., Prunty v. Keltie's Bum Steer, 163 A.D.2d 595, 596), and to permit conformity of pleadings to proof ( see, e.g., Agri Fin. v. Senter, 105 A.D.2d 560, 561, lv denied 64 N.Y.2d 603). The section of the Industrial Code on which plaintiffs rely ( 12 NYCRR 23-1.7 [h] [1] [i]) is adequately specific and concrete ( see, Boss v. Integral. Constr. Corp., 249 A.D.2d 214). The argument that the hole left in the raised floor by removal of tiles was integral to the construction process is raised for the first time on appeal, and since it could have been countered factually, we decline to reach it ( see, e.g., Reliance Natl. Ins. Co. v. Sapiens Intl. Corp., 243 A.D.2d 406).
Concur — Milonas, J.P., Rosenberger, Wallach, Tom and Mazzarelli, JJ.