BAIER v. LLC (2026)

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lisa A. Cairo, J.), entered July 12, 2024. The order, insofar as appealed from, granted the motion of the defendant Long Beach Assisted Living, LLC, for summary judgment dismissing the complaint insofar as asserted against it, and denied, as academic, the plaintiff's cross-motion pursuant to CPLR 3025 for leave to amend the bill of particulars.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, the motion of the defendant Long Beach Assisted Living, LLC, for summary judgment dismissing the complaint insofar as asserted against it is denied, and the plaintiff's cross-motion pursuant to CPLR 3025 for leave to amend the bill of particulars is granted.

The plaintiff, who resided in an assisted living facility owned and operated by the defendant Long Beach Assisted Living, LLC (hereinafter Assisted Living), alleges that he slipped and fell on sleet/ice on a boardwalk abutting the rear of the facility, sustaining injuries. The plaintiff commenced separate actions, which were later consolidated via stipulation of the parties, against Assisted Living and the defendant City of Long Beach to recover damages for personal injuries.

After a note of issue was filed, Assisted Living moved for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff opposed the motion and cross-moved pursuant to CPLR 3025 for leave to amend the bill of particulars to allege that Assisted Living violated certain New York State Department of Health regulations. By order entered July 12, 2024, the Supreme Court, among other things, granted Assisted Living's motion and denied, as academic, the plaintiff's cross-motion. The plaintiff appeals.

In support of its motion, Assisted Living contended that it established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by demonstrating that it did not own, occupy, control, or make special use of the boardwalk adjacent to the facility (see Robles v City of New York, 235 AD3d 674; Bartlett v City of New York, 169 AD3d 629, 630; see also Orellana v Cannon, 227 AD3d 1013, 1013). However, Assisted Living's motion papers established that the accident occurred after the plaintiff exited the facility to smoke a cigarette and walked toward a location designated for smoking by the facility, which prohibited smoking in the building, and after taking several steps, the plaintiff turned around to re-enter the facility and fell. Thus, contrary to the Supreme Court's determination, Assisted Living failed to establish its prima facie entitlement to judgment as a matter of law (see Fisher v City of New York, 245 AD3d 892, 893; Robles v City of New York, 235 AD3d at 675; Acevedo v Hope Gardens I, LLC, 226 AD3d 732, 733).

Accordingly, the Supreme Court should have denied Assisted Living's motion for summary judgment dismissing the complaint insofar as asserted against it regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Although the Supreme Court denied the plaintiff's cross-motion pursuant to CPLR 3025 for leave to amend the bill of particulars as academic, in the interest of judicial economy, we address the issue, which was fully briefed by the parties, on the merits, and grant the cross-motion. “The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial” (Jones v LeFrance Leasing Ltd. Partnership, 61 AD3d 824, 825). “Generally, in the absence of prejudice or surprise ․, leave to amend a bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” (Liese v Hennessey, 164 AD3d 1318, 1319 [internal quotation marks omitted]; see CPLR 3025[b]; Martin v Rizzatti, 142 AD3d 591, 593–594). “Leave to amend a bill of particulars may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant” (Ortiz v Chendrasekhar, 154 AD3d 867, 869 [internal quotation marks omitted]; see Skerrett v LIC Site B2 Owner, LLC, 199 AD3d 956, 956). “ ‘In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom’ ” (Achee v Merrick Vil., Inc., 208 AD3d 542, 543 [internal quotation marks omitted], quoting King v Marwest, LLC, 192 AD3d 874, 876; see Benegas v Ardsley Country Club, Inc., 230 AD3d 1093, 1094–1095; Moore v Franklin Hosp. Med. Ctr.-N. Shore–Long Is. Jewish Health Sys., 155 AD3d 945, 946).

Here, the amendment did not raise any new factual issues and there is no showing of prejudice. Accordingly, we grant the plaintiff's cross-motion pursuant to CPLR 3025 for leave to amend the bill of particulars.

In light of our determination, we need not reach the parties' remaining contention.

BARROS, J.P., IANNACCI, GOLIA and OTTLEY, JJ., concur.