Amalia Del Rosario, Plaintiff, v. 114 FIFTH AVENUE ASSOCIATES

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Supreme Court, Appellate Division, First Department, New York.

Julian DEL ROSARIO, Plaintiff-Appellant, Amalia Del Rosario, Plaintiff, v. 114 FIFTH AVENUE ASSOCIATES, et al., Defendants-Respondents.

Dakota Realty Inc., Third-Party Plaintiff, v. Merlite Industries, Inc., Third-Party Defendant-Respondent.

Decided: November 30, 1999

SULLIVAN, J.P., TOM, RUBIN, ANDRIAS and BUCKLEY, JJ. Tedd Kessler, for Plaintiff-Appellant. Karen A. Corcoran, for Defendants-Respondents. Joyce Bigelow, for Third-Party Defendant-Respondent.

Order, Supreme Court, New York County (Lorraine Miller, J.), entered October 20, 1998, which, insofar as appealed from, granted defendants' and third-party defendant's motions for summary judgment dismissing the complaint, and denied plaintiff's cross motion to amend his bill of particulars, unanimously affirmed, without costs.

 Plaintiff, a janitor employed by third-party defendant commercial tenant in a building owned and managed by defendants, alleges that while mopping a washroom floor, he slipped and fell on water that had leaked from a toilet.   The action was properly dismissed on the ground that the leaky toilet did not constitute a substantial structural defect for which the out-of-possession landlord and managing agent were responsible under the lease.   An out-of-possession landlord with a general right of reentry is not liable for general maintenance defects (Raynor v. 666 Fifth Avenue Limited Partnership, 232 A.D.2d 226, 647 N.Y.S.2d 779).   Plaintiff's request to amend his bill of particulars three years after commencement of the action, and five months after he filed a note of issue, so as to allege various statutory violations all based on the theory that his employer was running a factory or mercantile establishment, was properly rejected as untimely and prejudicial (see, Plung v. Cohen, 250 A.D.2d 430, 431, 673 N.Y.S.2d 114), and, in any event, as without merit.