Opinion
570804/07.
Decided December 16, 2008.
Defendants Damon G. Douglas Company and the New York Botanical Garden appeal, as limited by their brief, from that portion of an order of the Civil Court of the City of New York, Bronx County, (Raul Cruz, J.), entered April 2, 2007, which denied their motion for summary judgment dismissing plaintiff's complaint and all cross claims against them.
Order (Raul Cruz, J.), entered April 2, 2007, modified to grant defendants-appellants' motion to dismiss plaintiff's common law negligence and Labor Law § 200 claims, and Labor Law § 241(6) claim insofar as it alleged a violation of 12 NYCRR 23-2.1(a)(1), and otherwise affirmed, without costs.
PRESENT: McKeon, P.J., Davis, Heitler, JJ.
Plaintiff's common law negligence and Labor Law § 200 claims should have been dismissed since defendants established that they did not directly supervise or control the work of the subcontractors and had no notice of any specific dangerous conditions ( see Meslin v New York Post, 30 AD3d 309; Mitchell v New York University, 12 AD3d 200).
In the absence of any showing of prejudice by defendants, the court appropriately permitted plaintiff to supplement his bill of particulars to allege specific code violations and considered the violations cited in the summary judgment motion despite plaintiff's failure to identify them in his complaint and bill of particulars ( see Zuluaga v P.P.C. Constr., LLC, 45 AD3d 479; McCoy v Metropolitan Transp. Auth., 38 AD3d 308). Plaintiff's belated identification of the specific code violations entailed no new factual allegations and raised no new theories of liability ( see Noetzell v Park Ave. Hall Hous. Dev. Fund, 271 AD2d 233).
The motion court correctly found that there is a triable issue as to whether plaintiff, who fell on an area referred to by the parties as a "walkway," was injured in a "passageway" covered by 12 NYCRR 23-1.7(e)(1) ( see Bopp v A.M. Rizzo Elec. Constr. Co., 19 AD3d 348) or a "working area" within the meaning of 12 NYCRR 23-1.7(e)(2), since the worksite employees routinely traversed this physically defined area as their only access to equipment and materials, making it arguably an integral part of the work site ( see Smith v Hines GS Properties, Inc., 29 AD3d 433; Militello v 45 West 36th Street Realty Corp., 15 AD3d 158). However, contrary to the motion court's conclusion, Industrial Code (12 NYCRR) 23-2.1(a), which requires that "building material" be stored in a safe and orderly manner," is inapplicable in the absence of any showing that the material which caused plaintiff to fall was being "stored" or that the accident involved "material piles," as oppose to a single pipe ( see Castillo v Starrett City, Inc., 4 AD3d 320).
While I agree with the majority that plaintiff's Labor Law § 200 claim is not viable absent proof that defendant-appellants, the owner and general contractor, had supervision and control over the injury producing work and actual or constructive notice ( see Kimirons v Teachers Ins. Annuity Assoc. of Am., 34 AD3d 237), I would go further and dismiss plaintiff's Labor Law § 241(6) claim as well.
Plaintiff's October 3, 2006 "Supplemental Bill of Particulars," served after filing of the notice of trial and in response to a summary judgment motion by defendants, is, in reality, an amended bill of particulars, which asserts new claims and required leave of the court. Thus, the so-called supplemental bill of particulars is a nullity, and it was error for the motion court to allow plaintiff to materially alter his theory of liability by such means ( see Gaisor v Gregory Madison Ave., LLC, 13 AD3d 58).
Plaintiff's original bill of particulars, dated November 2, 1988, provides no meaningful amplification of the pleadings beyond reiterating that plaintiff tripped and fell on a walkway "by a construction pipe or piping." Indeed, in that document, plaintiff indicated that "[f]urther details regarding notice [would] be provided after additional pre-trial discovery." None was ever supplied, not even in the defective supplemental bill served some eight years later. Having asserted a Labor Law § 241(6) claim in his complaint and bill of particulars, plaintiff was obligated to cite to specific Industrial Code standards which would support the imposition of a nondelegable duty on the owner and general contractor ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505). It was only after the owner and general contractor moved for summary judgment that plaintiff served the flawed "supplemental" bill of particulars, even though he had previously placed the action on the trial calendar without the necessary amplification of his Section 241(6) claims. Indeed, there is nothing in the record to factually support plaintiff's belated effort to satisfy the requirements of Ross. Plaintiff fell on a pipe. Now, out of thin air, plaintiff embraces Industrial Code sections which have nothing to do with the facts developed in discovery. This is nothing more than an effort to salvage a meritless case which has languished too long.
I thus respectfully dissent, and would grant defendants' motion for summary judgment dismissing the complaint.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.