Debellis v. NYU Hospitals Center

Orders, Supreme Court, New York County (Rosalyn Richter, J.), entered May 17, 2004 and August 6, 2004, respectively, which, inter alia, denied the motion of defendant NYU Hospitals Center (NYU) for summary judgment insofar as it sought dismissal of plaintiffs Labor Law § 200 and common-law negligence claims, and denied its motion to strike plaintiffs supplemental bill of particulars in its entirety, unanimously affirmed, without costs. 321 Plaintiff, an elevator mechanic’s helper, was injured when he fell approximately 25 feet when one of the gratings on the catwalk on which he was walking while inspecting the equipment on the bottom of an elevator car within NYU’s building collapsed. The catwalks installed within the building’s elevator shafts were never inspected and there are thus triable issues, relevant to plaintiffs Labor Law § 200 and common-law claims, as to whether NYU had constructive notice of the defective condition and whether the failure to inspect the catwalks proximately caused plaintiff’s fall and resulting injuries (see Bonura v KWK Assoc., 2 AD3d 207 [2003]). The court properly denied NYU’s motion to strike plaintiffs supplemental bill of particulars to the extent it amplified the allegations of constructive notice. Although plaintiff filed the supplemental bill of particulars without leave of the court, after the note of issue was filed, and after the court issued its decision on NYU’s motion for summary judgment, the more detailed allegations of constructive notice merely elaborate upon facts previously set forth in the complaint and original bill of particulars, and, accordingly, should not be a source of unfair surprise or prejudice to NYU (see Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232 [2000]). We have considered NYU’s remaining contentions and find them unavailing. Concur—Buckley, P.J., Williams, Lerner, Gonzalez and Sweeny, JJ.