ELLIS v. INC (2006)

 Plaintiff commenced this common-law negligence and Labor Law action seeking damages for injuries he sustained while working for third-party defendant, a subcontractor hired by defendant-third-party plaintiff (defendant).   Plaintiff stepped into an open sump hole in a basement while installing electrical wire in the first-floor joists, resulting in an injury to his left foot that required bone fusion surgery and allegedly progressed into reflex sympathetic dystrophy, all of which allegedly caused plaintiff to suffer chronic pain and depression.   Supreme Court did not abuse its discretion in denying third-party defendant's motion to bifurcate the trial.   Plaintiff established in opposition to the motion “that the nature of [his] injuries has an important bearing on the issue of liability” (Martinez v. Town of Babylon, 191 A.D.2d 483, 484, 594 N.Y.S.2d 357 [internal quotation marks omitted];  see Iszkiewicz v. Town of Lancaster, 16 A.D.3d 1163, 790 N.Y.S.2d 899) and thus that “bifurcation would not ‘assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action’ ” (Mazur v. Mazur, 288 A.D.2d 945, 945-946, 732 N.Y.S.2d 204, quoting 22 NYCRR 202.42[a] ).

 We further conclude that the court properly granted the cross motion of plaintiff for leave to amend his bill of particulars to identify the section of the Industrial Code allegedly violated, i.e., 12 NYCRR 23-1.7(b)(1).   Although the note of issue and certificate of readiness had been filed, there was no “unfair surprise or prejudice” to defendant or third-party defendant (Walker v. Metro-North Commuter R.R., 11 A.D.3d 339, 341, 783 N.Y.S.2d 362;  see Glionna v. Kubota, Ltd., 154 A.D.2d 920, 546 N.Y.S.2d 992;  see also Harris v. Rochester Gas & Elec. Corp., 11 A.D.3d 1032, 1033, 783 N.Y.S.2d 733).   In addition, we conclude that the court properly denied that part of defendant's cross motion seeking summary judgment dismissing the Labor Law § 241(6) cause of action.   Contrary to defendant's contention, 12 NYCRR 23-1.7(b)(1) is applicable to the facts of this case because it “applies to [e]very hazardous opening into which a person may step or fall ․, provided that the hazardous opening ․ [is] one of significant depth and size” (Luckern v. Lyonsdale Energy Ltd. Partnership, 281 A.D.2d 884, 886, 722 N.Y.S.2d 632 [internal quotation marks omitted] ).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: