Batchilly v 610 8th Ave. Corp.Batchilly v 610 8th Ave. Corp.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about June 9, 2025, which denied plaintiff‘s motion for summary judgment on the issue of liability, denied the motion of defendants 610 Eighth Avenue Corp. and Madaleo Realty Corp. for summary judgment dismissing the complaint and all cross-claims as against them, and granted plaintiff‘s cross-motion for leave to amend the bill of particulars, unanimously affirmed, without costs.
610 owned the premises located at 610 Eighth Avenue and co-defendant Madaleo was the property manager (together, the Owners). The premises were leased to defendant Moshe Malka doing business as Blue DVD Xlentvibes. Blue DVD operated a retail adult video store on the ground floor and had DVD viewing booths on the second floor.
The lease for the premises stated that [the Owners] “shall be responsible for all structural repairs” and “shall have the right. . . to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine and the same and to make such repairs, replacements and improvements as [the] Owner[s] may deem necessary and reasonably desirable to any portion of the building or which [the] Owner[s] may elect to perform, in the premises, following [Blue DVD‘s] failure to make repairs or perform any work which [Blue DVD] is obligated to perform under this lease, or for the purpose of complying with laws, regulations, and other directions of governmental authorities.”
Plaintiff, an employee of Blue DVD, was on the second floor of the premises moving television monitors and DVD players when he fell through a hole in the floor that was covered by wallboard (sheetrock) and landed on the ground floor. The hole had been created by the removal of an internal stairwell connecting the two floors.
Supreme Court providently granted plaintiff‘s motion for leave to amend the bill of particulars. Plaintiff‘s proposed amendment did not advance a new theory of liability but “merely expounded on theories of liability” already set forth in a prior bill of particulars (see Napolitano v Gustavson, 190 AD3d 530, 530 [1st Dept 2021]), which alleged that the Owners committed building code violations because the wallboard was insufficient to support the required floor loads in the area where the staircase had once been (see Cordeiro v TS Midtown Holdings, LLC, 87 AD3d 904, 905-906 [1st Dept 2011]). The proposed second supplemental verified bill of particulars set forth the specific Building Code sections alleged to have been violated, and even though it was served at the summary judgment stage, the Owners have not shown sufficient surprise or prejudice to deny the amendment (see Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365 [1st Dept 2007]). Indeed, the Owners’ expert addressed the issue of the alleged statutory violations in their opposition to plaintiff‘s motion for summary judgment.
Additionally, Supreme Court properly denied plaintiff‘s motion for summary judgment on liability. While the lease language, coupled with a specific statutory violation, would ordinarily suffice to charge the Owners with constructive notice of the dangerous condition, plaintiff failed to establish a specific violation of the Building Code (see e.g. Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566 [1987]; cf. Whitney v Valentin, 105 AD3d 519, 520 [1st Dept 2013] [“Given [defendant‘s] witness‘s undisputed testimony as to the violation of a specific statute, [defendant], as an out-of-possession landlord with the right to reenter the premises to inspect and repair, is charged with constructive notice of the defective condition“]). Plaintiff‘s expert opined that the wallboard-covered hole violated the 1916 Building Code and noted, in a conclusory manner, that later building codes contained similar language. In opposition, the Owners’ expert asserted that any reference by plaintiff‘s expert to a “structural defect” based on the 1916 Building Code was irrelevant because the 1968 Building Code governed the premises. These conflicting expert opinions as to which Building Code applies, and whether the applicable building code establishes a specific statutory violation, cannot be resolved on a summary judgment motion (see Legrand v USC-NYCON, LLC, 234 AD3d 596, 597 [1st Dept 2025]).
We have considered the Owners’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: August 6, 2026