Schiff v ABI One LLC

Schiff v ABI One LLC 2017 NY Slip Op 08312 Decided on November 28, 2017 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 November 28, 2017
Richter, J.P., Kapnick, Webber, Oing, Singh, JJ.
5043 158161/12

[*1]Fran Schiff, etc., Plaintiff-Respondent,

v

ABI One LLC, et al., Defendants-Appellants.

Perry, Van Etten, Rozanski & Primavera LLP, New York (Jeffrey K. Van Etten of counsel), for appellants.

Pollack, Pollack, Isaac & DiCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered September 21, 2016, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint, and granted plaintiff's cross motion to amend the bill of particulars, unanimously affirmed, without costs.

The motion court correctly concluded that there were triable issues of fact as to whether defendants, the owner and manager of a building in which plaintiff's decedent lived, installed smoke and carbon monoxide detectors in decedent's apartment and whether such failure, if it occurred, was a proximate cause of his injuries. Although the building superintendent testified that he installed the device in decedent's apartment, conflicting testimony from other witnesses was presented, the documentary evidence is unclear, no smoke detector was observed in the debris following the fire, and neither the neighbors nor the firefighters heard an alarm (see Mero v Vuksanovic, 140 AD3d 574, 575 [1st Dept 2016], lv dismissed 29 NY3d 999 [2017]). Further, evidence was presented that a smoke alarm could have alerted decedent in sufficient time to escape before being overcome by smoke inhalation.

The motion court providently exercised its discretion in permitting plaintiff to amend the bill of particulars, after the filing of the note of issue, to add additional statutory violations; mere delay is not a sufficient basis to deny the relief and defendants failed to show prejudice or likely surprise

(see Flowers v 73rd Townhouse LLC, 149 AD3d 420, 421 [1st Dept 2017]).

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 28, 2017

CLERK