Opinion
2011-11-10
Nathaniel ROBINSON, Plaintiff–Respondent–Appellant,v.NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant–Respondent.
Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant-respondent.Alpert, Slobin & Rubenstein, LLP, New York (Gary Slobin of counsel), for respondent-appellant.
Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered October 29, 2010, which, insofar as appealed from, in this action for personal injuries, granted the branch of plaintiff's cross motion seeking to amend his pleadings to add a claim for violation of Multiple Dwelling Law (MDL) § 62, and granted that part of the motion of defendant New York City Housing Authority (NYCHA) for summary judgment dismissing plaintiff's claim for common-law negligence, unanimously modified, on the law, to grant defendant's motion in its entirety and to deny plaintiff's cross motion, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of NYCHA dismissing the complaint.
Plaintiff's cross motion to amend his complaint and bill of particulars to assert a claim under MDL 62 was untimely since the claim is based on a theory not previously advanced and the applicable statute of limitations has expired ( see CPLR 203[f] ). The new theory went beyond mere amplification of the pleadings, constituting a new, distinct, and independent theory of liability ( Lopez v. New York City Hous. Auth., 16 A.D.3d 164, 165, 791 N.Y.S.2d 86 [2005] ). In any event, even had plaintiff timely asserted this claim, MDL 62 is inapplicable here where the structure from which plaintiff allegedly fell was an overhang, not a roof, terrace, or other structure under the ambit of MDL 62.
Furthermore, NYCHA established its entitlement to judgment as a matter of law by establishing that it had no notice of any defective or unsafe condition necessary to sustain a General Municipal Law § 205–e claim based on either MDL 78 or 62 *338 ( Fernandez v. City of New York, 84 A.D.3d 595, 596, 924 N.Y.S.2d 43 [2011] ). For the same reason, the motion court properly dismissed the common-law negligence claim.
TOM, J.P., ANDRIAS, ACOSTA, FREEDMAN, RICHTER, JJ., concur.