The following papers numbered 1 to 21 were read on this motion by plaintiff, CECILIA CALLEJAS, for an order pursuant to CPLR 3025(b), granting leave to amend her verified bill of particulars; and the cross-motion by the defendant, TAMMERO CONSTRUCTION CORP. for an order pursuant to CPLR 3043 striking the plaintiff's supplemental bill of particulars served on March 8, 2013:

Papers Numbered

Notice of Motion-Affidavits-Exhibits.................1 - 6

Cross-Motion-Affirmation-Exhibits....................7 - 10

Affirmation in Opposition to Motion.................11 - 14

Affirmation in Opposition to Cross-Motion...........15 - 18

Replay Affirmation in Support of Cross-Motion.......19 - 21

This is an action for damages for personal injuries sustained by plaintiff, Cecilia Callejas, on November 13, 2011, when she slipped and fell on the stairs between the 3rd floor and 2nd floor inside the building formerly owned by defendant, [*2]Tammero Construction Corp. The building is located at 119-59 27th Avenue, County of Queens, City and State of New York. Plaintiff commenced the within action by filing a summons and complaint on December 1, 2011. Issue was joined by Tammero on January 19, 2012 by service of a verified answer and demand for a verified bill of particulars.

On February 22, 2012, plaintiff served a bill of particulars alleging that the plaintiff fell as a result of defective and dangerous stairs, specifically the second step down from the 3rd floor. Plaintiff states that while descending from the 3rd floor she caught her foot on a distended, dislocated, separated and upraised stair edging strip which is part of the steel riser assembly for the fireproof stair. Plaintiff alleges that the defective stair was in violation of New York City Building Code sections C26-604.8, 27-375 and 26-604-8(e)(2) which concern riser heights and tread widths. Plaintiff alleges that as a result of the fall she sustained a left trimalleolar ankle fracture requiring an open reduction with internal fixation. Plaintiff also responded that her lost earnings were unknown at the time of the initial bill of particulars.

A preliminary conference was held on March 2, 2012, and a compliance conference was held on September 10, 2012, at which time plaintiff was ordered to file a note of issue by February 13, 2013. The note of issue was filed by plaintiff on December 3, 2012. In an affirmation filed with the note of issue, plaintiff indicated that discovery was not complete but that the note of issue was being filed pursuant to the court's prior order. On October 23, 2012 the plaintiff served a "supplemental bill of particulars" containing an expansion of the plaintiff's medical condition. On November 26, 2012, plaintiff served an "amended verified bill of particulars" which included additional injuries to the plaintiff's left knee as well as a statement of the plaintiff's special medical damages. This matter is now on the calendar of the trial scheduling part on July 10, 2013.

On December 14, 2012 the deposition of the plaintiff took place. At that time she testified, inter alia, that in addition to the broken step, the lighting over the steps was poor. Anthony Tammero testified on behalf of the defendant corporation on February 26, 2013. He testified that there is florescent lighting on the third floor landing at the top of the stairs which is controlled by a timer. Plaintiff also submits an affidavit from an eyewitness to the plaintiff's fall, Carlos Velez, dated March 13, 2013 stating that: "in addition to complaining of the steps being dangerous because the metal edging was separating from the step creating a tripping hazard, the light over the stairs was [*3]missing and/or not working on a regular basis. The light that was there contained two receptacles for incandescent bulbs, not florescent bulbs, and at the time of the accident, it was only one bulb." Plaintiff asserts that since he was not able to depose the defendant until February 2013, subsequent to filing the note of issue, he was unable to amend the bill of particulars earlier as he could not verify the exact lighting on the staircase. He states that the person responsible for the maintenance of the lighting was only deposed ten days prior to the filing of the amended bill of particulars. In reply, plaintiff states that he would re-produce the plaintiff for a deposition on these issues to avoid a claim of prejudice.

Plaintiff's counsel now moves for an order granting leave to serve an additional amended bill of particulars which includes poorly maintained and inadequate lighting as an additional proximate cause of the accident. In addition plaintiff's proposed amended verified bill of particulars seeks to add additional violations of the NYS Multiple Dwelling Law, and NYC Housing Maintenance Code which concern lighting.

Defendant opposes the motion to amend the bill of particulars. Defendant contends that although the plaintiff testified at her deposition that the stairway was dark, she never attributed her fall to the state of the lighting in the stairwell, rather, she testified that she was looking straight ahead on the stairwell when she caught her heel on the stairs, twisted her foot and fell. In addition, the defendant states that plaintiff failed to submit a reasonable explanation for waiting until after the note of issue was filed to seek to amend the bill of particulars when the condition of the lighting on the stairway was something that was within the plaintiff's knowledge from the outset of the case. Further, it is alleged that the plaintiff could have obtained the statement from the plaintiff's eyewitness regarding the lighting conditions and sought to amend the bill of particulars to include improper lighting prior to filing the note of issue.

Defendant contends that the court should not permit an amendment to the bill of particulars brought after the filing of the note of issue where new factual allegations and a new theory of liability are sought to be added on the eve of trial and when the defendant will be prejudiced by the addition of the new theory of liability. Counsel states that allegations concerning the lighting in the stairwell were not alleged in the complaint nor any prior bills of particulars and the defendant was not put on notice of this claim as the deposition testimony of the plaintiff did not attribute the poor lighting as a cause of the [*4]accident (citing Kowalik v Lipschutz, 81 AD3d 782 [2d Dept 2011]). Defendant also contends that because of the delay, Tammero no longer owned the building in question and no longer has open access to the premises in order to investigate the plaintiff's late claim (citing Alarcon v UCAN White Plains Hous. Dev. Fund Corp., 100 AD3d 431 [1st Dept. 2012]).

Defendant also cross-moves to strike plaintiff's supplemental bill of particulars dated March 8, 2013, which includes a statement of the name of the plaintiff's employer and the amount claimed for lost earnings. The supplemental bill of particulars was in response to items contained in the original demand for a bill of particulars dated January 18, 2012. Counsel claims that pursuant to CPLR 3043 plaintiff's claim for lost earnings is not a proper subject for a supplemental bill of particulars given that plaintiff failed to make a claim for lost earnings previously and the recent claim for lost earnings was served subsequent to the filing of the note of issue.

Upon review and consideration of the plaintiff's motion defendant's cross-motion, plaintiff's affirmation in opposition and defendant' reply thereto, this court finds as follows:

Pursuant to CPLR 3025(b), leave to amend a bill of particulars is ordinarily freely given in the absence of prejudice or surprise, unless the amendment is sought on the eve of trial (see J. Leonard Spodek v Neiss, 2013 NY Slip Op 1543 [2d Dept. 2013]; Clark v Clark, 93 AD3d 812 [2d Dept. 2012]; Russo v Lapeer Contr. Co., Inc, 84 AD3d 1344 [2d Dept. 2011]; Sinistaj v Maier, 82 AD3d 868 [2d Dept. 2011]; Bernardi v Spyratos, 79 AD3d 684 [2d Dept. 2010]; Alvarado v Beth Israel Med. Ctr., 78 AD3d 873 [2d Dept. 2010]; Grande v Peteroy, 39 AD3d 590 [2d Dept. 2007]).

This Court finds that the amendment to the bill of particulars although not palpably insufficient nor patently devoid of merit, was made subsequent to the filing of the note of issue and further as the motion was made on the eve of trial the amendment, which adds a new theory of liability, would significantly prejudice the defendant. Because of the delay in seeking leave to amend, the defendant now has insufficient time to investigate the lighting at the building at the time of the accident (see Schiavone v. Victory Mem'l Hosp., 300 AD2d 294 [2d Dept. 2002]). Moreover, the theory with respect to the lighting in the stairwell was not a matter that was recently learned by the plaintiff who had full knowledge of the lighting conditions in the stairway since the inception of the case. Plaintiff does not offer a reasonable explanation as to why she failed to allege [*5]the condition in either the complaint or initial bill of particulars or why she waited until discovery was completed to seek amendment of the bill of particulars. Further, although the plaintiff testified at her deposition concerning poor lighting in the stairwell, her testimony at the deposition was too vague to give defendant notice of the additional claim as it fails to state that the lack of lighting was a causative factor in the fall (see Hunt v New York City Hous. Auth., 280 AD2d 391 [1st Dept. 2001]). Accordingly, the plaintiff's motion for leave to serve an amended verified bill of particulars is denied.

The cross-motion by defendant for an order striking the plaintiff's supplemental bill of particulars dated March 8, 2013 which includes a statement of the name of the plaintiff's employer and the amount of claimed lost earnings is denied. The allegation of lost earnings contained in the supplemental bill of particulars did not constitute a new cause of action or new injury. Rather, that allegation constituted a claim of "continuing special damages and disabilities" which can be asserted, as of right, pursuant to CPLR 3043 (b) (see Fortunato v Personal Woman's Care, P.C., 31 AD3d 370 [2d Dept. 2006]; Berman v Wheels, Inc., 207 AD2d 704 [1st Dept. 1994]). Defendant has not shown how it would be prejudiced by the plaintiff's inclusion of lost earnings as a measure of damages at this time. Moreover, the plaintiff has supplied defendant with an authorization for the plaintiff's payroll records.

Dated: June 24, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.

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