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Warshefskie v New York City Hous. Auth.
2013 NY Slip Op 30072(U)
January 17, 2013
Supreme Court, Richmond County
Docket Number: 101966/07
Judge: Joseph J. Maltese
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
DCM PART 3
Motion No.: 006, 007
DECISION & ORDER
HON. JOSEPH J. MALTESE
NEW YORK CITY HOUSING AUTHORITY,
The following items were considered in the review of the following motion for summary judgment and crossmotion to amend the summons and complaint and leave to amend the bill of particulars.
Notice of Motion and Affidavits Annexed
Memorandum of Law In Support
Notice of Cross-Motion and Affidavits Annexed
Affirmation in Reply to Motion
Affirmation in Reply to Cross-Motion
Attached to Papers
Upon the foregoing cited papers, the Decision and Order on this M otion and Cross-M otion is as follows:
The defendant moves for summary judgment dismissing the plaintiff’s complaint. The
motion is granted in part. The plaintiff cross-moves to amend the summons and complaint and
for leave to amend the bill of particulars. The cross-motion is denied.
This is an action to recover for the amputation of the plaintiff’s right index finger while
he was an on duty police officer on December 6, 2006. It is alleged that as the plaintiff pursued a
suspect down a flight of stairs in the Berry Houses, located at 50 Dongan Hills Avenue, Staten
Island, New York, he reached out to prevent an automatic fire door from closing. The plaintiff
was successful in reaching the door before it closed shut. But he grabbed the top of the door.
The plaintiff alleges that the top of the door had a ridge with a jagged metal corner, instead of a
flat sealed surface. The plaintiff claims that when he reached out to stop the automatic door from
closing, his index finger sunk into the ridge. The door swung shut automatically latching into the
door frame which severed the plaintiff’s fingertip that was gripping the ridge at the top of the
The plaintiff’s complaint alleges two causes of action. The first cause of action is to
recover under a theory of common law negligence; and the second cause of action is brought
pursuant to the General Municipal Law § 205-e. The note of issue was filed on March 28, 2012.
The defendant moves for summary judgment dismissing the plaintiff’s complaint. The plaintiff
cross moves to amend the summons and complaint and supplement his bill of particulars to
include the applicable sections of the 1938 Building Code of the City of New York and the
Housing and Maintenance Code.
Cross-Motion to Amend the Summons and Complaint and
Supplement the Bill of Particulars
A court may freely grant leave to amend a complaint, provided that the proposed
amendment does not prejudice or surprise the defendant, that it is not patently devoid of merit,
and that is not palpably insufficient.1 However a factor to be considered in determining whether
a motion to amend a pleading should be granted is whether the moving party has unduly delayed
in asserting the proposed claim or defense. In particular, a court should be hesitant to grant to
grant a motion made when the action has long been ready for trial.2 And in cases where
amendments are sought at the eve of trial discretion should be exercised sparingly.3
Kinzer v. Bederman, 59 AD3d 496 [2d Dep’t, 2009].
Excelsior Insurance Company v. Antretter Contracting Corporation, 262 AD2d 124 [1st
Comsewogue Union Free Sch. Dist. v. Allied-Trent Roofing Sys., 15 AD3d 523 [2d
In this case the note of issue was filed on March 28, 2012. Furthermore, the plaintiff
originally sought to amend his complaint and bill of particulars in March 2011. In a decision and
order dated August 3, 2011 this court permitted the plaintiff to amend his complaint and
supplement his bill of particulars to include a cause of action to based upon a violation of law in
allowing unlawful activity in the building. But upon reargument this amendment was denied. It
also must be noted that the initial motion to amend the summons and complaint, and supplement
the bill of particulars did not include a branch to add a violation of Sections C26-286 of the 1938
Building Code of the City of New York and Section 27-2005 of the Housing Maintenance Code,
as opposed to the 1968 code section which plaintiff originally plead.
Given the totality of the circumstances it would be an abuse of discretion to consider the
amendments to the summons and complaint and the supplementation of the bill of particulars to
include these alternate theories of liability. Consequently, the cross-motion is denied.
Motion for Summary Judgment
A motion for summary judgment must be denied if there are “facts sufficient to require a
trial of any issue of fact (CPLR §3212[b]). Granting summary judgment is only appropriate
where a thorough examination of the merits clearly demonstrates the absence of any triable issues
of fact. “Moreover, the parties competing contentions must be viewed in a light most favorable
to the party opposing the motion”.4 Summary judgment should not be granted where there is any
doubt as to the existence of a triable issue or where the existence of an issue is arguable.5 As is
relevant, summary judgment is a drastic remedy that should be granted only if no triable issues of
fact exist and the movant is entitled to judgment as a matter of law.6 On a motion for summary
Marine Midland Bank, N.A., v. Dino, et al., 168 AD2d 610 [2d Dept 1990].
American Home Assurance Co., v. Amerford International Corp., 200 AD2d 472 [1st
Rotuba Extruders v. Ceppos,, 46 NY2d 223 ; Herrin v. Airborne Freight Corp.,
301 AD2d 500 [2d Dept 2003].
judgment, the function of the court is issue finding, and not issue determination.7 In making such
an inquiry, the proof must be scrutinized carefully in the light most favorable to the party
opposing the motion.8
The plaintiff’s bill of particulars states that the closing mechanism was defective in that it
closed the door with excessive force. In addition, the plaintiff asserted that the door was kept in
a defective condition which rendered the door dilapidated with jagged and sharp edges. The
defendant’s expert, Mark I. Marpet, PhD, a professional engineer, opined that since the building
was built in 1950 the 1938 Building Code applied, not the 1968 Building Code cited in the
plaintiff’s bill of particulars. The defendant’s expert further avers that even if the 1968 Building
Code applied there would not be a violation. The court finds that the defendant has met its prima
facie burden going forward.
Even assuming that the court granted the plaintiff’s cross-motion to amend the summons
and complaint and supplement the bill of particulars to include the 1938 Building Code, the code
makes no reference to the speed at which self closing doors should operate. In fact the text of the
1938 Building Code reads as follows:
C26-286 (a) Self-Closing and automatic doors and windows . . .
shall be equipped with such devices as may be required under the
conditions of operating to close, and maintain in a closed
condition, the doors and windows to which such devices are
attached, except that easily released door holders may be used
elsewhere than in basement passageways located in structures used
exclusively for school purposes, provided that regular supervised
fire drills are held. (b) Self-closing and automatic doors and
windows and their operating devices shall at all times be
maintained in working order. It shall be unlawful to so obstruct,
hold, or block open any such door or window as to interfere with or
prevent its operating as a self-closing or automatic fire or smoke
Weiner v. Ga-Ro Die Cutting, 104 AD2d 331 [2d Dept 1984]. Aff’d 65 NY2d 732
Glennon v. Mayo, 148 AD2d 580 [2d Dept 1989].
Furthermore, neither the 1938 nor the 1968 Amendments to the Building make any
reference to the construction of the door itself. The regulations do speak of the use and
placement of bolts and locks, but they make no reference to how a door should be customized.
The defendant’s expert demonstrated that the 1968 Amendments to the 1938 Building Code were
not applicable to this building as it was built in 1950. In addition, defendant’s expert opines and
this court accepts that both the 1938 and the 1968 Amendments to the Building Code concern
general safety requirements. Even if the court granted the plaintiff’s application to amend its
complaint and bill of particulars, the defendant’s expert concluded the 1938 Building Code was
In opposition, the plaintiff’s expert, Richard J. Trieste, P.E., concludes that self closing
mechanism was not properly calibrated. The plaintiff’s expert’s conclusion was based upon a
visual inspection that the door “slammed shut” each time. However, the plaintiff’s expert offers
no evidence quantifying the force of the closing door.
In order to assert a cause of action under General Municipal Law § 205-e, a plaintiff must
demonstrate that the defendant violated a “. . . statute, ordinance, rule, order or requirement.” A
court must dismiss a GML § 205-e claim where a plaintiff has not demonstrated a violation of
any statute, ordinance, rule, order or requirement.9 Here, the plaintiff has failed to raise an issue
of fact with respect to any violation of a statute, ordinance, rule, order or requirement which
would support a GML § 205-e claim. Consequently, that cause of action is dismissed.
However, the plaintiff’s cause of action sounding in general negligence remains. The
defendant’s argument that the dismissal of a GML § 205-e claim barred recovery under a theory
of ordinary negligence is incorrect. The plaintiff’s cause of action alleging negligence against the
defendant may continue through the application of General Obligations Law § 11-106 that states:
Williams v. City of New York, 256 AD2d 332, [2d Dep’t. 1998].
In addition to any other right of action or recovery otherwise
available under law, whenever any police officer or firefighter
suffers any injury, disease or death while in the lawful discharge of
his official duties and that injury, disease or death is proximately
caused by the neglect, willful omission, or intentional, willful or
culpable conduct of any person or entity, other than that police
officer's or firefighter's employer or co-employee, the police officer
or firefighter suffering that injury or disease, or, in the case of
death, a representative of that police officer or firefighter may seek
recovery and damages from the person or entity whose neglect,
willful omission, or intentional, willful or culpable conduct
resulted in that injury, disease or death.
Unlike the cases cited by the moving defendants, the plaintiff is not asserting his claim
against his municipal employer, the New York City Police Department, nor is he asserting his
claims against a police co-worker.10 Consequently, the defendant had a duty to maintain its
premises in a reasonably safe condition.11 To state a prima facie case for premises liability the
plaintiff must show that a defect or dangerous condition existed on the property, and that the
defendant either created the condition, or had actual or constructive notice of the condition.12
Here, the plaintiff’s expert adequately demonstrates that an issue of fact exists concerning
general negligence in the modification of the door to fit the door frame. In particular, the
plaintiff’s expert avers that the doors in question are manufactured with, “. . . flat sealed edges...”
He further avers that the fact that the a recessed area existed at the top of the door, rather than at
the bottom was improper. While the defendant’s expert may state that the industry standard does
not prohibit the recessed edge at the top the door in question, it is that question that must be
determined by a jury. The defendant’s argument that it did not have notice, either actual or
constructive, of the recessed edge at the top of the door fails because their records indicate that
See, Melendez v. City of New York, 271 AD2d 416 [2d Dep’t 2000); see also, Carter v.
City of New York, 272 AD2d 498 [2d Dep’t 2000].
Basso v. Miller, 40 NY21d 233 .
Walsh v. Super Value, Inc., 76 AD3d 371 [2d Dep’t 2010].
the door was subject to a multitude of inspections. Therefore, summary judgment is denied as to
the plaintiff’s negligence claim.
Accordingly, it is hereby:
ORDERED, that the defendant’s motion for summary judgment is granted to the extent
that the second cause of action pursuant to GML § 205-e is dismissed; and it is further
ORDERED, that the defendant’s motion for summary judgment is denied as to the
plaintiff’s first cause of action for common law negligence; and it is further
ORDERED, that the plaintiff’s cross-motion to amend the summons and complaint and
supplement the bill of particulars is denied; and it is further
ORDERED, that the parties shall return to DCM Part 3, 130 Stuyvesant Place, 3rd Floor,
on Friday, January 25, 2013 at 11:00 a.m. for a final pre-trial conference
DATED: January 17, 2013
Joseph J. Maltese
Justice of the Supreme Court