Thomas v New York City Hous.
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Thomas v New York City Hous. 2013 NY Slip Op 33904(U) January 7, 2013 Supreme Court, Bronx County Docket Number: 0311416/2011 Judge: Norma Ruiz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Feb 04 2013 Bronx C~~ 'f\sitK. SUPREME COURT - COUNTY OF BRONX 1-- - - PART 11 ~ --·- - - . \ Case Disposed 0 I Settle Order 0 Schedule Appearance 0 · SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF BRONX: -------------------------------------------------------------------X Index NQ. THOMAS,CALVIN E. -against- 0311416/2011 Nett.. LAURA DOUGLAS , t-f-otJ - f\J Dr MO.. R.Li l 2... THE NEW YORK CITY HOUSING . Justice. -------------------------------------------------------------------)( The following papers numbered l to$ Read on this motion, BILL OF PARTICULARS/PRECLUDE Noticedon June 19 2012 and duly submitted as No~ on the Motion Calendar of I L- ';J._ D- PAPERS NUMBERED . I Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Answering Affidavit and Exhibits A (IA1YYJ f'rr._1\ f 1 l ...~ £y./t...j ' ~ 5 Replying Affidavit and Exhibits I I I Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Fi led Papers Memoranda of Law Upon the for,going papers this ~ ~ )/Yl~ ~~~o/ ~· °D~ ~. f£6 i.i 4 2Dt3 ' Dated: I 1tft 113 I Hon.___..__.,__fdK_ LAURA 90UCL 4 Si , J Sic N o\ '(Y\(A_ R_ul.L) -:rs c [* 2] FILED Feb 04 2013 Bronx County Clerk NEW YORK SUPREME COURT ----- COUNTY OF BRONX PART 22 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX Index No.: 311416/2011 CALVIN E. THOMAS -against- Present: HON. NORMA RUIZ NEW YORK CITY HOUSING AUTHORITY Defendant. The following papers numbered 1 to 5 Read on this motion Strike Bill of Particulars Noticed on 6/19/12 and duly submitted as No. -22.._ on the Moticin Calendar of 10/1112 Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion to:. Papers Numbered 1- 2 Notice of Motions and Affidavits Annexed ............................ . Notice of Cross Motion and Answering Affidavits ................ . 3-5 Replying Affidavits ................................................................ . Memorandum of Law .............................................................. . Other: Upon the foregoing papers, the foregoing motion(s) [and! or cross-motions(s), as indicated below, are consolidated for disposition] and decided as follows: Defendant New York City Housing Authority's motion to strike from the bill of particulars the plaintiffs claims regarding handrail of the subject staircase is granted. Plaintiffs cross motion for an order granting leave to amend the notice of claim is denied. In this action, the plaintiff seeks damages for injuries he allegedly sustained when he tripped/slipped and fell down the second floor landing of interior stairway "A" of the defendant's building located at 383 E. 143'd Street in the Bronx. In the amended notice of claim, the plaintiff alleges that his accident was due to the dangerous, defective, broken, hazardous, dimly-lit, wet, fecesfilled and unsafe condition of said landing. . . [Defendants were also] [* 3] FILED Feb 04 2013 Bronx County Clerk negligent in its ownership, design, construction, operation, maintenance, management, repair and control of the premises mentioned, and more specifically the aforementioned landing. [Defendant was] further negligent in allowing, causing, creating and permitting the landing to be, become and remain in a broken, dangerous, defective, unstable, dimly lit, wet, fecesfilled and unsafe condition; in causing, allowing and permitted the landing to be carelessly, negligently and dangerously maintained, creating a trap, nuisance and hazard upon the said premises and more particularly upon the landing and in failing to post any notice or warning of the said dangerous and defective condition at said premises and landing" (see amended notice of claim). Defendant persuasively argues that the claims in the bill of particulars regarding the defendant's alleged negligence in its maintenance of the handrail of the subject staircase constitutes a new theory of liability and as such should be stricken from the bill of particulars. Plaintiff cross moves for leave to amend his notice of claim to add the claim that · the defendant negligently maintained the handrail. He contends that the allegation regarding the handrail is not a new theory ofliability. Instead its an expansion of the negligence claims already set forth in the notice of claims. The Court disagrees. The notice of claim limited the allegations of negligence to the staircase landing. The allegation of a defective handrail was raised for the first time in the plaintiffs bill of particulars. Thus, the Court finds it is a new theory of liability. A proposed amendment that creates a new theory of liability is not within the purview of permissible corrections to a notice of claim (GML § 50-e[6]; White v New York City Housing Authority, 288 AD2d 150, 150 [1st Dept 2001]). Accordingly, the defendant's motion is granted and the plaintiffs cross motion is denied. All claims of negligence regarding the handrails of the subject stair case are hereby stricken from the bill of particulars. This constitutes the decision and order of the court. Dated: Bronk, NeJ York HON. NORMA RUIZ, J.S.C. 2
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