CLAUS v. << (1998)

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about October 31, 1997, which granted plaintiffs' motion to vacate an earlier judgment, denied a motion and cross motion to dismiss the complaint to the extent of upholding claims under Labor Law § 241(6), severed and continued those claims, along with all related counterclaims, cross claims and third-party claims, and granted plaintiffs leave to interpose an amended bill of particulars, deeming the proffered amended bill served and filed, unanimously affirmed, without costs.

 Under the unique circumstances presented, the court's vacatur of its prior judgment was a proper exercise of its inherent power (see, Ladd v. Stevenson, 112 N.Y. 325, 331-332, 19 N.E. 842).   Leave to amend the bill of particulars was appropriately granted by the court sua sponte (see, e.g., Zinn v. Long Island Jewish Medical Center, 101 A.D.2d 860, 861, 476 N.Y.S.2d 8), since it had inherent power to permit the correction of pretrial disclosure (see, e.g., Prunty v. Keltie's Bum Steer, 163 A.D.2d 595, 596, 559 N.Y.S.2d 354), and to permit conformity of pleadings to proof (see, e.g., Agri Finance, Inc. v. Senter, 105 A.D.2d 560, 561, 481 N.Y.S.2d 504, lv. denied 64 N.Y.2d 603, 485 N.Y.S.2d 1027, 475 N.E.2d 474).   The section of the Industrial Code on which plaintiffs rely (12 NYCRR § 23-1.7 [b] [1][i] ) is adequately specific and concrete (see, Boss v. Integral Constr. Corp., 249 A.D.2d 214, 672 N.Y.S.2d 92).   The argument that the hole left in the raised floor by removal of tiles was integral to the construction process is raised for the first time on appeal, and since it could have been countered factually, we decline to reach it (see, e.g., Reliance Natl. Ins. Co. (UK) v. Sapiens Intl. Corp., 243 A.D.2d 406, 665 N.Y.S.2d 253).

MEMORANDUM DECISION.