Opinion
2014-05-29
Lorna STUBBS, Plaintiff–Appellant, Roma Thomas, Plaintiff, v. 350 EAST FORDHAM ROAD, LLC, Defendant–Respondent.
Bailly and McMillan, LLP, White Plains (Keith J. McMillan of counsel), for appellant. Law Office of James J. Toomey, New York (Evy Kazansky of counsel), for respondent.
Bailly and McMillan, LLP, White Plains (Keith J. McMillan of counsel), for appellant. Law Office of James J. Toomey, New York (Evy Kazansky of counsel), for respondent.
TOM, J.P., MOSKOWITZ, DeGRASSE, RICHTER, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered February 22, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiff Lorna Stubbs's motions for partial summary judgment on the issue of liability and for leave to amend her bill of particulars, and granted defendant 350 East Fordham Road, LLC's cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, the cross motion denied as to plaintiff's common-law negligence claim, and otherwise affirmed, without costs.
Plaintiff Lorna Stubbs was standing on the sidewalk in front of the two-story building located at 350 East Fordham Road when part of the stucco siding on the building fell off the facade and struck her.
The court acted within its discretion in denying plaintiff leave to amend the bill of particulars to allege violations of section 28–301.1 and former section C26–352.0 of the Administrative Code of the City of New York, as plaintiff did not seek leave to add such allegations until over two years after commencement of the action, and eight months after the note of issue had been filed ( see Reilly v. Newireen Assoc., 303 A.D.2d 214, 218, 756 N.Y.S.2d 192 [1st Dept.2003],lv. denied100 N.Y.2d 508, 764 N.Y.S.2d 235, 795 N.E.2d 1244 [2003] ). In any event, there is no basis to impose liability under section 28–301.1, which “imposes a general duty on owners to maintain their premises and does not specifically address the alleged structural defect at issue” ( Miki v. 335 Madison Ave., LLC, 93 A.D.3d 407, 408, 940 N.Y.S.2d 38 [1st Dept.2012],lv. denied19 N.Y.3d 814, 2012 WL 5200350 [2012];see Maksuti v. Best Italian Pizza, 27 A.D.3d 300, 811 N.Y.S.2d 375 [1st Dept.2006],lv. denied7 N.Y.3d 715, 826 N.Y.S.2d 180, 859 N.E.2d 920 [2006];Lane v. Fisher Park Lane Co., 276 A.D.2d 136, 141–142, 718 N.Y.S.2d 276 [1st Dept.2000] ). Here, while Administrative Code § 28–302.1 requires maintenance of “exterior walls,” that provision applies only to “buildings greater than six stories.” Administrative Code § C26–352.0 is inapplicable because the facade of the building was not an “exposed structure [ ] on the top[ ] of [the] building.”
Nevertheless, the common-law negligence claim should be reinstated. While defendant established that it did not create or have actual notice of any defect in the facade, it failed to establish that it exercised reasonable care in maintaining the facade of the building through a program of inspection. Defendant's managing member testified only that he would observe the exterior facade of the building as he walked past the building, and plaintiff's engineer opined that even a cursory inspection would have disclosed the issues that required repair. Thus, the record presents an issue of fact as to whether defendant exercised reasonable care in maintaining the facade, and whether constructive notice may be imputed ( see Hayes v. Riverbend Hous. Co., Inc., 40 A.D.3d 500, 501, 836 N.Y.S.2d 589 [1st Dept. 2007],lv. denied9 N.Y.3d 809, 844 N.Y.S.2d 784, 876 N.E.2d 513 [2007] ).
Further, while plaintiff may be entitled to invoke the doctrine of res ipsa loquitur at trial ( see Dittiger v. Isal Realty Corp., 290 N.Y. 492, 49 N.E.2d 980 [1943];Kaplan v. New Floridian Diner, 245 A.D.2d 548, 548, 667 N.Y.S.2d 65 [2d Dept.1997];Shinshine Corp. v. Kinney Sys., 173 A.D.2d 293, 569 N.Y.S.2d 686 [1st Dept.1991] ), since the inference of negligence arising from plaintiff's circumstantial proof is not inescapable, she is not entitled to partial summary judgment in her favor (Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 207–209, 818 N.Y.S.2d 792, 851 N.E.2d 1143 [2006] ).
We have reviewed the remaining contentions and find them unavailing.