ORROS v. YICK MING YIP REALTY INC

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

Christopher ORROS, Plaintiff-Appellant, v. YICK MING YIP REALTY, INC., et al., Defendants-Respondents.

Decided: February 23, 1999

RUBIN, J.P., MAZZARELLI, ANDRIAS and SAXE, JJ. Martin Diennor, for Plaintiff-Appellant. Kelby N. Bowman, Anthony Marino, for Defendants-Respondents.

Order, Supreme Court, New York County (Alfred Toker, J.H.O.), entered November 18, 1997, which granted plaintiff's motion to renew and reargue with respect to the order of the same court and J.H.O., entered October 21, 1997, which, inter alia, denied in part plaintiff's motion for leave to file a supplemental bill of particulars, and adhered to the court's original determination, unanimously modified, on the law, the facts and in the exercise of discretion, to grant plaintiff leave to serve a supplemental bill of particulars as to paragraphs “6” and “7” (except for the last six lines of paragraph “6”), and otherwise affirmed, without costs.   Appeal from order entered October 21, 1997, unanimously dismissed, without costs, as superseded by the appeal from the order entered November 18, 1997.

 Insofar as plaintiff's motion, made nearly one year after the filing of his note of issue, raised a new theory of liability based upon the alleged negligence of a nonparty, it was properly denied.   Although plaintiff had been on notice for several months prior to the filing of his note of issue of the facts pertinent to the proposed amendment, he offered no explanation for his delay in moving to amend (see, CPLR 3042(b);  CPLR 3043(b);  Brugnano v. Merrill Lynch & Co., 216 A.D.2d 18, 627 N.Y.S.2d 635, lv. dismissed 86 N.Y.2d 880, 635 N.Y.S.2d 942, 659 N.E.2d 765;  Reynolds v. A.C. Towne Corp., 132 A.D.2d 952, 518 N.Y.S.2d 528).

 However, plaintiff should have been permitted to file a supplemental bill of particulars with respect to defendants' alleged violations of statutes, ordinances, rules, and/or regulations, since these amendments, which merely amplify and elaborate upon facts and theories already set forth in the original bill of particulars, raise no new theory of liability (see, Taveras v. Equitable Life Assurance Society, 221 A.D.2d 166, 633 N.Y.S.2d 32;  Rothstein v. City Univ. of New York, 194 A.D.2d 533, 599 N.Y.S.2d 39).

MEMORANDUM DECISION.