BERNARDEZ v. 70 FRANKLIN PLACE LLC (2022)

Order, Supreme Court, Bronx County (Theresa M. Ciccotto, J.), entered on or about April 30, 2021, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to amend the bill of particulars and for partial summary judgment on his claims, and granted defendant 70 Franklin Place LLC's motion for summary judgment dismissing the Labor Law § 241(6) claim, unanimously affirmed, without costs.

Plaintiff electrician was working in the basement of a renovation project owned and managed by defendants-respondents (defendants) when the floor beneath him collapsed and he fell partially through the opening.  The motion court correctly denied plaintiff's motion to amend the bill of particulars to add an allegation that defendants violated Industrial Code (12 NYCRR) § 23–3.3(c).  There is no evidence that the hand demolition work plaintiff performed in the basement in removing old electrical equipment from the walls had a causal relationship with the floor.  Further, because plaintiff relied only on that provision on appeal, we find that dismissal of his Labor Law § 241(6) claim was appropriate.

The court also correctly found that questions of fact exist as to whether defendants were on notice that the collapse was foreseeable in light of the condition of the basement and sub-basement, as depicted in photographs submitted by plaintiff (see Jones v. 414 Equities LLC, 57 A.D.3d 65, 79–80, 866 N.Y.S.2d 165 [1st Dept. 2008];  see also Clemente v. 205 W. 103 Owners Corp., 180 A.D.3d 516, 517, 119 N.Y.S.3d 109 [1st Dept. 2020];  Mendoza v. Highpoint Assoc., IX, LLC, 83 A.D.3d 1, 11–12, 919 N.Y.S.2d 129 [1st Dept. 2011].  Thus, summary judgment in plaintiff's favor on his negligence and Labor Law §§ 200 and 240(1) claims was not warranted.