DEFENDANTS GRANTED SUMMARY JUDGMENT OF DISMISSAL WHERE NO NOTICE OF BENT "LIP" ON EDGE OF METAL MOLDING SURROUNDING ACCESS DOOR OVER WHICH PLAINTIFF TRIPPED AND FELL

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

Case: Patrice Miki v. 335 Madison Avenue, LLC

Date: March 1, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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Order, Supreme Court, New York County (Martin Shulman, J.), entered January 20, 2011, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this personal injury action, plaintiff allegedly tripped and fell on a bent "lip" on the edge of the metal molding surrounding an access door, which was located on the floor of a heavily‑trafficked room on the mezzanine level of premises owned by defendant 335 Madison and managed by defendant Milstein. Defendant General Electric leased the mezzanine level of the premises and subleased it to plaintiff's employer, nonparty American Independence.

The motion court properly dismissed plaintiff's claim that the access door violated Administrative Code of the City of New York Sec. 28-301.1, since she failed to allege the statute in, or seek leave to add it to, her bill of particulars (see generally Reilly v. Newireen Assoc., 303 A.D.2d 214, 217-218, 756 N.Y.S.2d 192 [2003], lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 235, 795 N.E.2d 1244 [2003]). Moreover, the claim lacks merit, as the statute merely imposes a general duty on owners to maintain their premises, and does not specifically address the alleged structural defect at issue (see Guzman v. Haven Plaza Hous. Dev. Fund Co., Inc., 69 N.Y.2d 559, 516 N.Y.S.2d 451, 509 N.E.2d 51 [1987]; see also Maksuti v. Best Italian Pizza, 27 A.D.3d 300, 811 N.Y.S.2d 375 [2006], lv. denied 7 N.Y.3d 715, 826 N.Y.S.2d 180, 859 N.E.2d 920 [2006]; cf. Cusumano v. City of New York, 15 N.Y.3d 319, 327-328, 910 N.Y.S.2d 410, 937 N.E.2d 74 [2010, Lippman, Ch. J., concurring])

Defendants made a prima facie showing of entitlement to judgment as a matter of law with respect to plaintiff's common‑law negligence claim by submitting evidence that they did not create or have notice of the alleged dangerous condition. In response, plaintiff failed to raise a triable issue of fact. Indeed, the record shows that plaintiff and her coworkers had entered and exited the subject room several times a day, over a period of years, and there had been no complaints or incidents related to the metal molding or bent lip before the accident (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837_838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986]).

We have considered plaintiff's remaining arguments and find them unavailing.

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