PRITCHETT v. Split Rock Golf Club, Inc., Defendant. (2025)

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about January 3, 2025, which, to the extent appealed from, denied plaintiff's cross-motion for leave to serve an amended bill of particulars, unanimously affirmed, without costs.

Plaintiff's cross-motion to amend her bill of particulars was made three months after the note of issue was filed, and five years after plaintiff commenced the action.  Under the circumstances, she was required to demonstrate a reasonable excuse for her delay (see Silber v. Sullivan Props., L.P., 182 A.D.3d 512, 513, 123 N.Y.S.3d 115 [1st Dept. 2020]).  However, plaintiff's expert inspected the staircase on which plaintiff allegedly fell prior to the commencement of the action, and plaintiff offers no explanation why the code and statutory provisions she now identifies as additional bases of liability could not have been asserted in her original bill of particulars (see Perez v. New York City Health & Hosps. Corp., 226 A.D.3d 602, 602–603, 211 N.Y.S.3d 17 [1st Dept. 2024], lv dismissed 43 N.Y.3d 985, 233 N.Y.S.3d 254, 259 N.E.3d 1121 [2025];  Stovall v. Lenox Hill Hosp., 200 A.D.3d 570, 571, 155 N.Y.S.3d 333 [1st Dept. 2021]).

In any event, the proposed amendments fail because they are clearly lacking in merit (see Perrotti v. Becker, Glynn, Melamed & Muffly LLP, 82 A.D.3d 495, 498, 918 N.Y.S.2d 423 [1st Dept. 2011]).  Ordinarily, a plaintiff should be granted leave to amend a bill of particulars to assert violations of codes, statutes, and/or regulations that “ ‘merely amplify and elaborate upon facts and theories already set forth in the original bill of particulars, [and] raise no new theory of liability,’ ” absent a prejudice to the nonmoving party (Malerba v. New York City Tr. Auth., 236 A.D.3d 596, 597, 231 N.Y.S.3d 106 [1st Dept. 2025]).  That is not the case, however, where the codes, statutes, and/or regulations sought to be added are plainly inapplicable (see Bawa v. JJ. Operating Inc., 234 A.D.3d 517, 518, 224 N.Y.S.3d 392 [1st Dept. 2025]).  Here, the Building/Administrative Code provisions sought to be added by plaintiff to her bill of particulars either apply only to stairs that serve as a means of egress from the interior of a building, which clearly do not apply to the type of stairs on which plaintiff fell (see Gaston v. New York City Hous. Auth., 258 A.D.2d 220, 224, 695 N.Y.S.2d 83 [1st Dept. 1999]).  Plaintiff's other asserted code violations relate to, general, nonspecific safety provisions that cannot serve as an independent basis of liability (see Centeno v. 575 E. 137th St. Real Estate, Inc., 111 A.D.3d 531, 531, 975 N.Y.S.2d 335 [1st Dept. 2013]), or are contained in versions of codes that postdate the construction of the building.  The Fire Code provisions sought to be added by plaintiff do not apply because, again, the staircase was not a means of egress from the building.  Finally, the proposed addition of the Landmarks Preservation Law is irrelevant because plaintiff offers no support for the proposition that a violation of the Landmarks Preservation Law can support a cause of action sounding in negligence.