Plaintiff Could Not Rely On Code Provisions Not Mentioned in Plaintiff’s Bill of Particulars to Defeat Summary Judgment

The Second Department determined Supreme Court correctly declned to allow plaintiff to rely on provisions of the Administrative Code which were not included in plaintiff’s bill of particulars.  Plaintiff, in response to defendant’s (16302 Jamaica’s) motion for summary judgment, alleged that plaintiff had violated provisions of the code which required defendant, an out-of-possession landlord, to keep the premises where plaintiff fell safe.  But because the provisions relied upon in response to the summary judgment motion were not the same provisions listed in the bill of particulars, Supreme Court refused to consider them and granted summary judgment to the defendant.

Although the plaintiff contends on appeal that 16302 Jamaica violated other provisions of the Administrative Code of the City of New York that imposed a statutory duty upon it to make repairs or maintain the premises in a safe condition, the plaintiff, in response to 16302 Jamaica’s demand for a bill of particulars, failed to identify these provisions either in his initial bill of particulars, his first supplemental bill of particulars, or his second supplemental bill of particulars. Thus, 16302 Jamaica was never placed on notice during the course of discovery that the plaintiff would rely upon these additional provisions of the Administrative Code as a predicate for its liability. Under these circumstances, the Supreme Court did not improvidently exercise its discretion in declining to allow the plaintiff to rely on those Administrative Code provisions in opposing 16302 Jamaica’s motion for summary judgment … . Wenzel v 16302 Jamaica Ave LLC, 2014 NY Slip Op 01744, 2nd Dept 3-19-14