Hernandez v Callen

Hernandez v Callen 2015 NY Slip Op 09638 Decided on December 29, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 29, 2015
Mazzarelli, J.P., Sweeny, Manzanet-Daniels, Gische, JJ.
16515 15916/12

[*1] Pedro Hernandez, et al., Plaintiffs-Appellants,

v

Robinson Callen, etc., et al., Defendants-Respondents.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.

Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered July 25, 2014, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiffs' cross motion to amend and/or supplement the bill of particulars, unanimously affirmed, without costs.

Dismissal of the complaint was warranted in this action where plaintiff Pedro Hernandez alleges that he was injured when he fell while ascending a two-step configuration that led from a corridor to restrooms in premises owned or operated by the various defendants. The code provisions relied upon by plaintiff do not require handrails or uniform riser heights on the stairs on which plaintiff fell, as they are not part of an "interior stair" (see Administrative Code of City of NY § 27-232; Remes v 513 W. 26th Realty, LLC, 73 AD3d 665 [1st Dept 2010]). Furthermore, the assertion of plaintiffs' expert, that good and commonly accepted safe industry practice required handrails and uniform riser heights on the subject steps, is conclusory, as it was not supported by reference to specific, applicable safety standards or practices (see Jones v City of New York, 32 AD3d 706, 707 [1st Dept 2006]; Contreras v Zabar's, 293 AD2d 362 [1st Dept 2002]).

Plaintiffs' cross motion to amend and/or supplement the bill of particulars was properly denied since the code provisions plaintiffs sought to assert are inapplicable (see e.g. Kittay v Moskowitz, 95 AD3d 451 [1st Dept 2012], lv denied 20 NY3d 859 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 29, 2015

CLERK