Opinion
2014-03-18
Louis HERNANDEZ, Plaintiff–Respondent, v. ALDUS III ASSOCIATES, LP, et al., Defendants–Appellants.
Jeffrey S. Shein & Associates, P.C., Syosset (Charles R. Strugatz of counsel), for appellants. Diamond and Diamond LLC, New York (Stuart Diamond of counsel), for respondent.
Jeffrey S. Shein & Associates, P.C., Syosset (Charles R. Strugatz of counsel), for appellants. Diamond and Diamond LLC, New York (Stuart Diamond of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, ANDRIAS, DeGRASSE, RICHTER, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered December 19, 2012, which denied defendants' motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for leave to amend the bill of particulars, unanimously affirmed, without costs.
Defendants' motion was properly denied in this action where plaintiff was injured when, while descending the exterior steps of defendants' building while it was raining, he slipped and fractured his right ankle. Plaintiff alleges, inter alia, that he fell because the edge of the step was worn, that the step was slippery because it was painted with high-gloss paint and had no friction strips, and that his ankle broke because his foot slipped between the treads, which had no risers, in violation of Administrative Code of City of N.Y. § 27–376(c). The record demonstrates that defendants failed to meet their initial burden of demonstrating that they lacked notice of the alleged dangerous conditions of the steps ( see Rodriguez v. Board of Educ. of the City of N.Y., 107 A.D.3d 651, 652, 969 N.Y.S.2d 25 [1st Dept.2013]; Jones v. 550 Realty Hgts., LLC, 89 A.D.3d 609, 932 N.Y.S.2d 778 [1st Dept.2011] ).
Even assuming that defendants met their initial burden, plaintiff raised triable issues in opposition. Defendants' contention that there is no allegation that the subject stair was worn is incorrect, since it was alleged in the bill of particulars and plaintiff testified at his deposition that he attributed his accident to the metal stair's worn tread and edge. A reasonable jury could infer that the complained-of worn condition happened over time ( see Taylor v. New York City Tr. Auth., 63 A.D.2d 630, 405 N.Y.S.2d 95 [1st Dept.1978],affd.48 N.Y.2d 903, 424 N.Y.S.2d 888, 400 N.E.2d 1340 [1979] ). The court properly considered plaintiff's expert's affidavit on the question of whether the lack of risers on the staircase violated the Administrative Code ( see Keneally v. 400 Fifth Realty LLC, 110 A.D.3d 624, 973 N.Y.S.2d 632 [1st Dept.2013] ), and defendants failed to rebut plaintiff's expert's opinion that the lack of any risers violated Administrative Code § 27–376(c) and was a proximate cause of the accident ( see Ruffin v. Chase Manhattan Bank, N.A., 66 A.D.3d 549, 550, 886 N.Y.S.2d 338 [1st Dept.2009] ). Plaintiff's expert affidavit is also sufficient to raise a triable issue as to whether defendants knew or should have known of the alleged existence of the worn tread on the subject stair ( see Garcia v. New York City Tr. Auth., 269 A.D.2d 142, 703 N.Y.S.2d 4 [1st Dept.2000] ).
The court providently exercised its discretion in granting plaintiff's cross motion to amend the bill of particulars. The proposed amendment is consistent with and relates back to the existing theories of liability as set forth in the complaint and the first supplemental bill of particulars, and the record demonstrates that defendants were on notice that plaintiff was injured on an exterior staircase, not an interior staircase ( see James v. 1620 Westchester Ave., LLC, 105 A.D.3d 1, 7, 962 N.Y.S.2d 4 [1st Dept.2013] ). Defendants' argument that the proposed bill of particulars was improperly verified is belied by the record.